Going Down in Flames

Craig La Rotonda

A few years back, when the Internet was still an unexplored frontier, one of the praises steadily sung about the medium was its power to disseminate information. On the World Wide Web, converts chirped, there was no need for a printer or distributor to broadcast your words. Anyone could simply get online and state their opinions, and make them available to a limitless audience, simultaneously reaching locales down

the street and around the globe.

But as always happens following a revolution, lots and lots of details were left to work out. For instance, when someone is defamed online--a potentially common event, given that conversational flame wars are one of the Internet's top contact sports--where does one go for justice? If a newspaper libels someone, the aggrieved party files suit in the paper's home city. But where do you file a suit over a remark published in the electronic ether?

Last month the Minnesota Supreme Court tackled just this issue, deciding to treat the Internet like any other medium when it comes to where people can file their defamation lawsuits. The justices reversed a $25,000 defamation judgment against a Minnesota woman that had been awarded in an Alabama court and filed for enforcement in Ramsey County District Court.

The case revolved around a disagreement between Katherine Griffis, an Alabama woman, and Marianne Luban, a Minnesota resident, both of whom participated in an Internet newsgroup on archaeology. In late 1996 a dispute arose between Luban and Griffis, who had taught courses in ancient Egyptian history at the University of Alabama. In December of that year, Luban posted a message that called into question Griffis's credentials, accusing her of getting her degree "from a box of Cracker Jacks." The disagreement continued into 1997 as both women continued to post argumentative messages on the newsgroup.

In September 1997, Griffis filed suit against Luban in Alabama state court. Griffis accused the Minnesota woman of making a number of defamatory statements on the newsgroup. Among the comments Luban was accused of making were that Griffis had gained membership in the International Association of Egyptologists by misrepresenting her qualifications; that she was not affiliated with the University of Alabama; that she did not have a doctor juris degree; that she was a liar; and that her consulting business was not legitimate. After she was notified of the suit, Luban was advised by an attorney that the Alabama court did not have jurisdiction over her, so she didn't answer the complaint or appear at the proceedings. Because Luban failed to respond to Griffis's allegations, in December 1997 the Alabama court entered a default judgment against Luban and ordered her to pay $25,000 in damages.

In May 1998, Griffis asked the Ramsey County District Court to enforce the Alabama court's ruling. Though Luban argued that the Alabama court had no jurisdiction over her, the Ramsey County court, and later the Minnesota Court of Appeals, upheld the Alabama judgment. After reviewing the case, however, on July 11 of this year the Minnesota Supreme Court reversed the decision, arguing in short that there was insufficient evidence that the statements Luban made from Minnesota had been expressly aimed at an Alabama audience.

"The fact that messages posted to the newsgroup could have been read in Alabama, just as they could have been read anywhere in the world, cannot suffice to establish Alabama as the focal point of the defendant's conduct," the justices' opinion states.

John Borger, a Minneapolis attorney who represented Luban in the appeal, calls the state high court's decision "eminently sensible." "There's a lot of talk on the Internet, on message boards and so on, that's kind of loose," he says. "Most of it rolls off of people's shoulders--and ought to. It's considered a free-wheeling medium of exchange."

It's certainly possible to defame someone online, just as in any other medium, Borger concedes. But that doesn't mean people should automatically be allowed to bring suit in their home states for critical comments made by people who live far away. "It would have a chilling effect on what people are willing to say on the Internet," he says.

Although the Internet's own reach may be limitless, that doesn't mean litigation should be, too, he continues, adding that Griffis could have sued Luban in a Minnesota court. "You still have to prove a significant connection between the defendant and state where the suit was brought," Borger notes. "The simple fact that you know where a plaintiff lives and works is not enough of a connection. The connection is between the defendant and the state, not the defendant and the plaintiff."

But C. Peter Erlinder, a professor at William Mitchell College of Law who handled Griffis's appeal, believes that the Minnesota justices made a mistake. Because Luban knew that Griffis lived and worked in Alabama, he contends, she also knew that the greatest harm from her online statements would be in Alabama, so it made sense for the lawsuit to be filed there. Erlinder argues that the very nature of the Internet--that anyone can become his or her own publisher--makes it easier for a writer living in one part of the country to tarnish the reputation of someone living thousands of miles away.

"It makes clearer the change in thinking that the Internet is going to have to bring to the question of publication," says Erlinder, who says he plans to appeal the Minnesota Supreme Court's ruling to the U.S. Supreme Court. "Until recently, authors have had to depend on some means of publication to deliver their message to where they wanted it to go. But the law has not yet figured out what to do about people who attack other people on the Internet.

"It's a really interesting balance of concerns," he goes on. "You don't want people to be afraid they're going to be sued every time they get into a flaming discussion on the Internet. But on the other hand, if someone says something on the Internet harming someone where they live and knowing that's where they live, it does not change the fact that they were trying to do harm in that state."

Jane Kirtley, the University of Minnesota's Silha Professor of Media Ethics and Law, says she isn't sure whether the U.S. Supreme Court will choose this as its test case, but she is convinced that the issue will have to be decided at that level. She argues that there must be some legal forum for individuals who feel they've been defamed online. For the moment, though, there may be more questions than answers when it comes to drawing the lines.

"More and more of us live in a virtual community," Kirtley offers. "Do we have a right to reputation there? And where are you going to sue? In cyberspace?"

And indeed, for those who run online forums, the concerns are practical. "Any well-organized discussion forum has to be concerned about the implications of defamation," says Steven Clift, board chair of Minnesota E-Democracy, which runs a number of e-mail discussion groups focused on local political issues. "Defamation often comes when it becomes personal, instead of issue-oriented. When it becomes personal, it degrades the value."

And although E-Democracy tries to establish ground rules of decorum in order to maintain a useful discussion, Clift says, the threat of legal actions, both in other states and other countries, is a serious one. "Give us one or two lawsuits, and we're gone," he says. "It doesn't matter whether we win or lose. We're a fragile, all-volunteer, no-budget organization."

Which is exactly Kirtley's point: While the law is being formed, those who participate in online forums--and those who organize them--should still consider the ramifications of their statements on the Internet. "I'm amazed that people believe they can publish anything on the Internet without any liability," Kirtley says. "The courts have never said the Internet gets more protection than other media.

The old guard of the Internet, she says, would prefer that people not be liable for online speech. "But that's not how the world works. We live in a litigious society, a litigious world."

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