Fifth Circuit Affirms Lack of Personal Jurisdiction in Web Publishing Case
On December 31, 2002, the United States Court of Appeals for the Fifth Circuit upheld a lower court decision dismissing plaintiff’s defamation suit over an article published on an Internet bulletin board on the grounds that the court lacked personal jurisdiction over the defendants. Revell v. Lidow, Docket No. 01-10521 (5th Cir. 2002). The Fifth Circuit concluded the website owner’s contacts with the state of Texas (where the lawsuit was filed) were not “substantial” and the allegedly defamatory material was not directed specifically to that state.
In this case, a Massachusetts author posted his article on an Internet bulletin board maintained by the Columbia School of Journalism. The article alleges a conspiracy among certain members of the Reagan Administration involving the failure to stop the Pan Am Flight 103 bombing over Lockerbie, Scotland and a subsequent cover up regarding advance knowledge of the event. The article assigned Oliver “Buck” Revell, a former Deputy Director of the FBI residing in Texas, a central role in the conspiracy. Revell brought a defamation suit in the U.S. District Court for the Northern District of Texas against the author and Columbia University.
The Fifth Circuit analyzed whether personal jurisdiction over the defendants was proper under the Texas long arm statute, as limited by the Due Process Clause of the Fourteenth Amendment. There are two types of personal jurisdiction. “Specific” jurisdiction arises from a defendant’s conduct in the state in connection with the matter at issue. “General” jurisdiction, on the other hand, is appropriate where a defendant’s contact with a state has been “continuous and systematic,” even though not related to the specific issue in dispute.
Revell argued that general jurisdiction existed over Columbia University because subscriptions to its publications can be obtained on its website, the website provides the ability to purchase advertising, and the website allows for the submission of electronic applications for admission. The Fifth Circuit rejected these arguments, noting that all websites have a “presence” in every jurisdiction, but such contacts must be “substantial” to pass muster under the Due Process Clause.
Revell argued that the court had specific jurisdiction over both the author and Columbia University, relying largely on the Supreme Court’s decision in Calder v. Jones, 465 U.S. 783 (1984). In that case, an actress brought a libel suit in California against both a Florida editor and writer of a National Enquirer article. The Supreme Court affirmed the existence of personal jurisdiction over the defendants finding they had “expressly aimed” their conduct towards California and knew the harm of their allegedly libelous article would be felt there.
The Fifth Circuit found the facts in this case distinguishable from those of Calder in that defendant’s article did not reference Texas, did not refer to Revell’s activities in Texas, and was not specifically directed at Texas readers. A key tenet of the Fifth Circuit’s opinion was that “the plaintiff’s residence in the forum, and suffering of harm there, will not alone support jurisdiction under Calder.”
The Fifth Circuit also relied on the defamation decisions of other circuits to support its conclusion that Calder did not apply, including the Fourth Circuit’s recent decision in Young v. New Haven Advocate. In that case, a Virginia prison warden sued two Connecticut newspapers and their staff in Virginia over allegedly defamatory articles posted on the newspapers’ websites. The Fourth Circuit concluded personal jurisdiction did not exist because the defendants “did not manifest an intent to aim their websites or the posted articles at a Virginia audience.” (See Update dated December 16, 2002).
Similarly, the Fifth Circuit found that the Internet article here was not “specifically directed at Texas,” noting that the author did not know Revell resided in Texas. The Fifth Circuit concluded that “[k]nowledge of the particular forum in which a potential plaintiff will bear the brunt of the harm forms an essential part of the Calder test.”
This constitutional analysis of personal jurisdiction contrasts sharply with the Australian decision described in our Update dated December 12, 2002, in which the Australian High Court held that liability for defamation can occur wherever Internet content is accessed.