This blogger was sued by this company for this post, for which plaintiff alleges damage to business reputation, business disparagement and loss of earning capacity (client signup and retention). (Interestingly, the item published in the post gives the blogger a defamation case against the author.)
Read the legal papers here.
A legal defense fund for the blogger has been set up by Greg Swann at BHB. A noble deed.
NOTE: To those who have been following the ongoing affair, the lawsuit is NOT about the posts which were referenced in the Cease and Desist letter. This lawsuit is about a later post.
What happens next?
The plaintiff brought suit in California against the individual blogger who resides in New Jersey. While there is subject matter jurisdiction (a claim under law this court has authority to adjudicate), I expect a motion to dismiss for lack of in personam (personal) jurisdiction– in layman’s terms, the plaintiff does not do business in, nor have sufficient contact with, California, to be fairly hauled into a California court.
The Law and its Long Arm
The legal test for personal jurisdiction over nonresidents:
The nonresident defendant must have certain minimum contacts with [the forum State] such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice’.
Traditional notions of fair play and substantial justice (”due process “) derive from the 14th Amendment to the US Constitution.
The state laws which define “minimal contacts” are known as long arm statutes (you know, the long arm of the law). Minimal contact issues consider, among other things, where a person advertises or derives income, owns property (in rem jurisdiction– the case has to involve the property), does business, or would expect to get sued if they committed an act in that state (eg. car accident, assault). Each state is free to define its own standards of minimal contact BUT those standards must not violate the due process clause of the 14th amendment. Y’all gotta be fair.
California’s Long Arm statute is very broad. It goes as far as the California or US constitutions allow. It is set forth in Cal.Civ.Proc. Code Section 410.10 and reads, with unlawyerlike brevity, as follows:
410.10. A court of this state may exercise jurisdiction on any basis not inconsistent with the Constitution of this state or of the United States.
The nature of the blog and the internet will surely play a role in the decision. My gut says it gets tossed, but I know CA to be legally unpredictable. I’ll have to research some cases when I get a chance.
BTW, if anyone has any links to cases (CA, Ninth Circuit, US Supreme Court) on personal jurisdiction/CA long arm statutes involving blogs, put them in the comments.
(Note: The fact that First Amendment issues are involved in a case has no bearing or effect on whether personal jurisdiction has been obtained . Those issues go to the merits of the case.)
All bloggers ought to know how to stay out of the way of lawyers. Most conferences do not cover this aspect of blogging. Inman News, to its credit, will have a panel on the subject. Blogging Pitfalls: How NOT to Get Sued at the Blogger Connect. (disclosure: I am moderating the panel and am a lawyer in real life)
(Image thanks to Image Generator).
Further Reading and Related Posts:
International Shoe Co. v. Washington (US Supreme Court 1945) – seminal case
Did Blogger Defame Miami Developer? A $25 million Libel Lesson
Playboy Playmate Sues Blogger for Libel
Technorati Tags: blogging, defamation, libel, disparagment, business disparagement, blogs
