The flux in jurisdictional laws of the various states in relation to Internet defamation presents some difficult First Amendment challenges. If a speaker makes a statement online, it is arguably published throughout the world. If that speaker cannot reasonably predict which of the many potential sets of laws circumscribing free speech may apply to him, the effect of that uncertainty may chill his speech. In other words, there is an ongoing concern that the very uncertainty about what is and is not prohibited from state to state may create a situation in which speakers will simply elect not to express their viewpoints online. Surely, this is contrary to the spirit of the First Amendment.

The most obvious laws that circumscribe free speech relate to the prohibition against defamation: an untrue statement about another that is communicated to a third party causing harm. States continue to develop different standards for determining whether their courts have jurisdiction over defamatory statements made by out-of-state authors who write over the Internet. New Jersey and New York offer very good examples of how different such jurisdictional standards can be.

New Jersey courts generally take a more lenient approach when determining whether jurisdiction exists in defamation cases. Essentially, a New Jersey court will look to see whether a message over the Internet specifically targets residents of New Jersey. In one recent New Jersey case, the Court held that it did in fact have jurisdiction. In that case, defamatory statements were made on the Internet regarding a female pilot who resided in New Jersey. The Court reasoned that since the person who made the comments knew that the target of the speech lived in New Jersey, he could reasonably have expected that New Jersey courts would have jurisdiction over the matter.

Courts in some other states, however, have declined to find jurisdiction based upon the impact of the online defamatory statements. Most notably, courts in many states have declined to find jurisdiction over comments made on websites based on a determination that the sites were passive websites not targeted to that particular state.

A good example is New York. New York courts have refused to find jurisdiction over defamatory comments made over the Internet, even if a person in New York suffered harm as a result of the comments. In fact, New York courts require defamation plaintiffs to overcome a higher burden when proving jurisdiction. In many cases, litigants have attempted to get around New York’s harsh rules by trying to claim that the defendant was transacting business within the state. However, New York courts will look very carefully at how much business is actually being transacted. Often, cases will be dismissed because the defamer has very few contacts with New York.

In conclusion, jurisdictional requirements for defamation claims vary from state to state. It is imperative that an individual who wishes to pursue a defamation claim against an out-of-state resident be careful to bring that action in the correct jurisdiction. If done improperly, the case may either be dismissed, or the plaintiff runs the risk that he will run out of time to bring a defamation action in the proper jurisdiction before the applicable statute of limitations for defamation has passed.


© 2008 Nissenbaum Law Group, LLC

PLEASE NOTE Meetings with attorneys by appointment only in Union, NJ; New York, NY; Philadelphia, PA & Dallas, TX offices. Legal services generally performed from the Union, NJ office. The firm has attorneys licensed in New Jersey, New York, Pennsylvania, Texas and/or the District of Columbia. In limited circumstances, the firm may practice in other states under the prevailing multi-jurisdiction rules or through pro hac vice admission.


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