June 11, 1999
By CARL S. KAPLAN
AOL Subscribers Can Be Sued in Virginia, Judge Rules
uppose you are engaged in a vicious online debate with an opponent in Virginia. Imagine, too, that you have just written an insulting message about your foe while hunched over your home computer in another state.
With the help of your America Online account, you post the message to a typical no-holds-barred Usenet newsgroup, a kind of electronic bulletin board that can be read by Internet users all over the world. Soon after, your opponent reads the message and decides that you have crossed the line and libeled him.
Can you be hauled into a Virginia court to answer a defamation lawsuit?
Late last month, a Federal District Court judge in Alexandria, Va., ruled that the answer is yes.
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Does this mean that AOL subscribers who write objectionable messages are at risk of being forced to appear in Virginia courts?
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In a decision that one legal expert called "pretty shocking," Judge T.S. Ellis 3d reasoned, in essence, that because a Texas defendant used his AOL account to post an allegedly defamatory message, the message must have been temporarily stored in AOL's Usenet server in Virginia before it was propagated to other Usenet servers.
The upshot, said the judge, is that the defendant's use of the server to facilitate the alleged libel was sufficient to warrant jurisdiction under Virginia's long-arm statute -- the state law that gives courts power over out-of-state defendants.
Does this mean that any of AOL's 17 million subscribers who write objectionable messages are at risk of being forced to appear in Virginia courts, just because some of AOL's servers are located in that state?
Michael A. Geist, an assistant professor at the University of Ottawa Law School who teaches Internet law, said in an interview that under Judge Ellis's ruling, the risk is real. But other legal experts were quick to disagree. A spokesman for AOL did not return phone calls.
"This is a pretty shocking case" that has broad implications for Internet users, said Geist, referring to Judge Ellis's decision in Bochan v. La Fontaine, dated May 26, 1999.
"With this sort of reasoning, someone in Canada who happens to have an AOL account, and who posts something, may find themselves subject to Virginia courts," he said. "That's hugely problematic."
The Bochan case began as a war of words among devotees of the conspiracy theories surrounding the death of President John F. Kennedy.
According to legal papers, Steve N. Bochan, a district manager for a group of theaters in northern Virginia, purchased a copy of a 1996 book on the JFK assassination, "Oswald Talked: The New Evidence in the JFK Assassination," written by two Texas-based journalists, Ray and Mary La Fontaine. He disagreed with the book and aired his views by posting comments to the online newsgroup alt.conspiracy.jfk in 1998.
These postings provoked a series of tart responses to the newsgroup from the La Fontaines and another defendant, Robert Harris of Albuquerque, N.M. In his ensuing lawsuit for defamation and intentional infliction of emotional distress, Bochan alleged that in some of their messages, the defendants accused him of being a pedophile, according to the court papers. The defendants, in an initial legal maneuver, asserted that the Virginia court did not have personal jurisdiction over them.
In an e-mail message, Bochan reiterated that the defendants' postings were untrue and hurtful. In interviews and faxed messages, the defendants denied that they had libeled Bochan. Last week, the parties reached an agreement to settle the case, but the terms were not disclosed.
In considering the jurisdiction issue only, Judge Ellis concluded that one defendant, Harris, had business ties with Virginia through his commercial Web site, and thus jurisdiction over him was a relatively easy matter. But the La Fontaines, he acknowledged, had no business or personal ties with Virginia. Under state law, the court would only have jurisdiction over them if they caused "injury by an act or omission" in Virginia.
Observing that the La Fontaines posted their comments to the newsgroup using a Texas-based ISP and their AOL account, the judge said that the allegedly defamatory messages were transmitted first to AOL's Usenet server in Loudoun County, Va. There the message was both stored temporarily and transmitted to other Usenet servers around the world. Thus, Judge Ellis said, because publication is a required element of defamation, and evidence showed that "the use of [a] Usenet server in Virginia was integral to that publication," there was a sufficient "act in Virginia" to allow for jurisdiction over the La Fontaines.
Analyzing the issue further, Judge Ellis concluded that under Federal due process standards, jurisdiction was justified for three reasons: Bochan lived in Virginia; the harm, if any, would be suffered there; and the La Fontaines knew Bochan was a Virginia citizen, despite their contentions to the contrary. As a result, they could "reasonably foresee" being sued in Virginia, Judge Ellis said.
Professor Geist said in an interview that Judge Ellis's decision runs counter to a majority of other Internet jurisdiction cases, which generally involve an analysis of how involved the defendant's Internet activity was with a particular state. "This case suggests that the location of an ISP or a server can be a determining factor in finding jurisdiction," he said.
The implications are significant, Geist added. If the reach of Virginia's long-arm statute is extended over scattered Internet users owing to the location of widely used servers in that state, the courts and laws of Virginia could effectively become the rulers of millions of Internet users, he said.
In addition, the decision could result in a rising popularity of offshore ISPs and servers to escape local jurisdictions, he said.
Dan L. Burk, an expert in cyberspace law who teaches at the law school of Seton Hall University, was more sanguine about Judge Ellis's ruling. The court's decision was predictable and narrow, given the facts of the case and the libel claim, which has "funny" jurisdictional implications, he said.
Burk said that the judge viewed the case as being not much different than what would happen if someone used a Virginia-based company to print an allegedly libelous pamphlet that was then read in Virginia.
"Here we have someone who read the electronic message in Virginia, and they read it by virtue of its passing through AOL's server," he said. "That doesn't seem terribly problematic to me."
Burk added that he believed the mere location of a message-storing server in a particular state would not confer jurisdiction over the message's out-of-state author or be permitted by the due process clause. He said a recent case in California appeared to support that conclusion.
Burk found the Virginia case interesting for another reason, however. He said it seems to line up with other Internet cases that indicate that the presence of electronic impulses on a machine is legally significant.
In the recent case of Intel v. Hamidi, electronic messages sent to an Intel server triggered a trespass claim. "Here newsgroup messages sent via an AOL account to a server in Virginia constitutes an act in Virginia," Burk said. "We're really starting to treat bits like we treat atoms -- capable of causing physical effects that trigger legal results," he said.
CYBER LAW JOURNAL is published weekly, on Fridays. Click here for a list of links to other columns in the series.
Carl S. Kaplan at kaplanc@nytimes.com welcomes your comments and suggestions.
