International Cases in New Media

1. International Cases in New Media Steve Baron April 21, 2009

2. Wrap up on tort cases – from 4-2-09 • Doe v. Friendfinder Network

3. Doe v. Friendfinder Network • Which Court? • Who’s the plaintiff? • Who’s the defendant? • What are they fightin’ about? • What is the Court asked to decide?

4. Doe v. Friendfinder Network • Court = USDC – District of New Hampshire • Plaintiff = Jane Doe????? • Defendant = Friendfinder Network • They’re fighting about an allegedly false and unauthorized personal ad • The Court must decide if the the complaint should be dismissed under Section 230 of the CDA.

5. Doe v. Friendfinder Network • What are plaintiff’s Claims? • Invasion of property/IP Rights • Defamation • Intentional/Negligent/ Reckless conduct • Intentional infliction of emotional distress • Violation of NH Consumer Protection Act • False designations under Lanham Act • Willful and Wanton Conduct

6. Doe v. Friendfinder Network • What claims survive the motion to dismiss and why?

7. Doe v. Friendfinder Network • Right of publicity claim – not immune from suit under Section 230 of CDA. • False designation of origin under Section 43 of Lanham Act – false or misleading endorsement. Need not be a celebrity.

8. International Cases in New Media • Common issues: • What law applies? • Where can parties be sued? • What impact on new (and old) media?

9. Mardas v. New York Times Company • Which Court? • Who’s the plaintiff? • Who’s the defendant? • What are they fightin’ about? • What is the Court asked to decide?

10. Mardas v. New York Times Company • Court = High Court of Justice – Queens Bench (United Kingdom) • Plaintiff = John Mardas • Defendants = New York Times and International Herald Tribune • The dispute involved alleged defamatory articles published in the UK (“charlatanism” and “lying”) • The High Court is asked to determine whether the “Master” (I.e. lower court) erred in dismissing the libel suit because there was insufficient publication in the UK.

11. Madras v. New York Times Company • What does the High Court decide?

12. Madras v. New York Times Company • The Master erred in dismissing the libel claims against defendants. • There were evidentiary issues concerning the nature and amount of publication in the UK. • In any event, the evidence presented suggested sufficient publication in the UK.

13. Madras v. New York Times Company • What is the impact on media? • Possibility of foreign media being sued in the UK based on fairly limited publication in the UK. • “a few dozen hits could be enough to found a cause of action in England although damages would be likely to be modest.” • Silver lining: in the UK, the loser pays attorney’s fees of the winner.

14. Libel Tourism • Defined: A plaintiff chooses the jurisdiction for a libel suit based upon where the law is likely to favor plaintiff’s case. • Was Mr. Madras a libel tourist? • He lives in Greece • Defendants were incorporated outside the UK • The amount of publication in UK was relatively small – as compared to the U.S. and France.

15. Free Speech Protection Act of 2009 • Pending bill in Congress • Aimed at curbing libel tourism • Provides a federal cause of action for an injunction and monetary remedies • Injunction to bar enforcement of a foreign libel judgment if subject speech was published in the U.S. and would not be actionable under U.S. law. • Remedies: amount of foreign judgment, costs and attorney’s fees and damages caused by decreased publishing opportunities

16. Quote of the day • “We’re leaving. . . . If you’re so cosmic, you’ll know why.” • John Lennon – spoken to the Maharishi upon departure from India