Close to home: Livejournal, defamation, and personal jurisdiction

Miller v. Kelly, 2010 WL 4684029 (D. Colo.)

Thanks to Eric Goldman for passing this along.  This magistrate judge’s recommendation about a defamation claim based on a LiveJournal (LJ) post has no real surprises on jurisdiction, but suggests that, though courts now understand the internet in general, it’s still important to provide them with relevant information on various internet islands.

Plaintiff Miller sued Kelly for defamation. The relevant LJ post title was “Setting the record straight--If anything happens it was Ann Marie Miller.” The post described Miller as "an intimacy stalker" and detailed her purported "stalking" behavior directed at Kelly and Kelly’s husband. Miller, proceeding pro se, alleged harm to her reputation in Colorado.

Kelly argued that the court lacked personal jurisdiction over her because she’s not a resident of Colorado and her post didn’t constitute sufficient minimum contacts with Colorado to justify requiring her to appear in a Colorado court.

The plaintiff bears the burden of showing that personal jurisdiction over a defendant exists. A court can consider well-pled factual allegations as well as affidavits and other written materials submitted by the parties in making this determination. Factual disputes are resolved in the plaintiff’s favor at this stage, and the court should construe a pro se litigant’s filings liberally, but without supplying additional factual allegations to round out her complaint or changing procedural rules.

Kelley [who appears in the caption as Kelly] is a citizen of Virginia. In this diversity case, personal jurisdiction would only be proper if (1) Colorado’s long-arm statute allowed it and (2) it was consistent with the 14th Amendment’s Due Process Clause. Since Colorado’s long-arm statute extends as far as the Constitution allows, only (2) was at issue.

Due process requires two things: (1) minimum contacts and (2) a finding that exercising personal jurisdiction would not offend traditional notions of fair play and substantial justice. Minimum contacts can come either from the defendant’s continuous and systematic contacts with the forum state (general jurisdiction) or from the defendant’s purposeful direction of activities at forum residents or purposeful availment of the privilege of conducting activities in the forum, when the litigation results from alleged injuries arising out of or relating to those activities (specific jurisdiction). Basically, a defendant must have purposely established minimum contacts with the forum state such that she should reasonably anticipate being haled into court there.

Miller argued that Kelley was subject to general personal jurisdiction because she wrote the blog entry. General personal jurisdiction may sometimes come from authoring a website. The case law divides websites into (1) business websites conducting business in various fora, which subject the authors to general personal jurisdiction; (2) passive websites where information is merely accessible to users in many for a, which by themselves do not allow general personal jurisdiction; and (3) interactive websites on which users can exchange information with the host computer, where there’s a sliding scale. General personal jurisdiction based on an interactive website depends on the level of interactivity and the commercial nature of the information exchange that occurs on the site.

Miller alleged that LJ was an interactive website. But she provided nothing to support this allegation, only the purported text of the entry. That didn’t provide any information about LJ, Kelley’s particular LJ, or the level of interactivity or commercial nature of either LJ in general (comment: no way should this matter in the slightest!) or Kelley’s LJ. Comment: a screenshot would have been extremely useful, because it would have shown (among other things) whether comments were enabled on the entry and thus whether the entry was even minimally “interactive.” (Though my guess, based solely on the human desire to discuss matters, is that comments were enabled.)

Based on what’s said in the opinion, the entry was not friends-locked—a level of privacy LJ allows to users that, as far as I can tell, is much less familiar to non-LJ users, but is a really neat feature. Locked entries are visible only to the exact set of logged-in users chosen by the poster, and thus enhance privacy substantially. Facebook now provides something similar, but really clunky and nontransparent (I still have no idea how to change the privacy of individual status updates, and it’s appalling that there are posts on the top ten things you should do for FB privacy, each of which requires a different set of actions), whereas LJ gives the filter a fair amount of prominence and it’s fairly easy to customize for each post.

Anyway, under Iqbal, there wasn’t enough pled to establish interactivity. Plus, Kelley averred that she “[did] not engage in any commercial activity[,] such as selling goods or services [,] through her LiveJournal postings, nor [did] she request interactive responses to her posts." (Is leaving comments open “requesting” comment? I can see a lawyer concluding that it is not.) She argued that she used LJ "to post her thoughts, as she would in a bound paper journal." The court concluded that the blog appeared to have been merely a passive website.

The court then turned to specific jurisdiction because of Kelley’s allegedly defamatory attacks on Miller, which were accessible in Colorado and which harmed her reputation in Colorado.

Purposeful direction requires (1) intentional action, (2) that was expressly aimed at Colorado, (3) with the knowledge that the brunt of the injury from the action would be felt in Colorado. The complaint adequately alleged intentional tortious action. Was it expressly aimed at Colorado? In the Tenth Circuit, the forum state itself, and not merely a known resident, must be the focal point of the defendant’s intentional action. And creating a passive web site, by itself, isn’t considered to be purposefully directed toward any particular state. Thus, writing the entry wasn’t purposefully directed at Colorado. The entry itself mentioned Colorado once, stating that Miller was currently residing in Denver, but it didn’t “request that readers harass [Plaintiff], ask readers to spread the word throughout Colorado of her mental instability, or urge Colorado employers not to hire her."

Moreover (and here I wonder if it’s proper to consider this on a motion to dismiss, but ok), Kelley maintained that she intended that the entry would be viewed only by the approximately six “friends” she had on LJ, none of whom live in Colorado. She intended it to be “semi-private” and didn’t know it would turn up in Google searches. (Reminder: many people simply do not know what their privacy settings are, even on sites like LJ!  And I think Kelley is reasonable in her expectation that the post would stay unnoticed even without being locked; most posts are in fact lost in the great wilds of the internet, and greater attention strikes like lightning, a point that many scholars have made.)  Even assuming that she knew that her post might have a negative effect in Colorado, that’s not enough to show express aiming.

What about her failure to remove the post after Miller asked? Does that create sufficient awareness of harm in Colorado to justify the exercise of personal jurisdiction? No. Failure to remove a website is not a separate act purposefully directed at Colorado.

The judge then turned to the question of whether to recommend dismissal without prejudice or transfer to Virginia. Though Miller could still refile within the applicable limitations period (supporting dismissal), her claim as pleaded could have merit under Virginia law (supporting transfer). The statements were potentially defamatory per se in that they imputed to Miller the commission of potentially criminal acts involving moral turpitude: “stalking,” attempted break-ins, an attempt to run Kelley and her husband off the road and cause a car accident, hacking into Kelley’s internet accounts, and creation of fake accounts under Kelley’s husband’s name. The entry further suggested that Miller was “dangerous”: "If anything happens to me and the baby dies, it was a baby that is both wanted and that we are excited about. This means that under the code of Virginia, [Plaintiff] would be prosecuted for the murder of my unborn baby." Bad faith also affects the choice of dismissal v. transfer, and there was no indication that Miller, proceeding pro se, either realized or should have realized that she picked the wrong forum. Thus, transfer to the Western District of Virginia was in the interest of justice.

(Suppose Miller proceeds pro se. If she’s able to take advantage of electronic filing, is the foreign forum that much harder for her to litigate in?)