02 July 2003

One of the major concerns of any writer—of books, of articles in periodicals, of weblogs—who comes even close to making controversial statements must be the seemingly simple "Where can I be hauled into court?" This can be particularly scary if there is a potential international reach to the material. More than one writer has had difficulty with republication in England or in periodicals with significant English circulations due to the unfavorable-to-writers libel laws in the UK. Even in the US, it can be difficult. A defense, even when fully successful, has monetary and personal costs greater than zero.

The traditional rule that jurisdiction over harmful statements (whether libel or something else) lies where the statements had been published (that is, made known to others) began to break down in the early part of the twentieth century. Now, with the Internet, each statement is technically published everywhere that it is viewed, because it is made known to others through creating copies by the very nature of the Internet. Unfortunately, there is no good answer to the question. Australia has enforced its UK-like libel laws against the Wall Street Journal for an article originating in the US, but concerning an individual in Australia who had significant US investments. Conversely, the US Court of Appeals for the Fourth Circuit denied trademark jurisdiction in Maryland against a Chicago-based healthcare provider that did not compete with the Maryland-based "victim," but used the same name—and had, unbeknownst to it, its website physically hosted in Maryland by its third-party hosting service.

The "right" answer is that jurisdiction should lie only where the statement originated or, in exceptional circumstances, where substantially the greatest harm was inflicted by the statement if the statement reflects intent to reach that jurisdiction. The Wall Street Journal article, under this reasoning, would not provide jurisdiction in Australia, as fewer than 100 subscribers to the Asian edition of the Journal lived in Australia, and the focus of the article was on US-based investment vehicles that had been allegedly influenced by the Australian resident. Thus, substantially the greatest harm would have been in the US. The Fourth Circuit's analysis in the trademark action, however, was correct: the statements were made in Chicago, and there was no substantial harm to the Maryland-based "victim" in Maryland.

As is usual in the law, however, the "right" answer is not the law. Instead, writers must deal with a crazy patchwork quilt of jurisdictional rules to determine whether statements they make could subject them to liability in other jurisdictions on grounds ranging from libel and invasion of privacy to trademark infringement to interferance with contracts.