First of all, this internet jurisdiction material, perhaps more so than any other idea that we have looked at, does not map at all onto what the writers of the Constitution had in mind, simply and obviously, because the idea of an alternate cyberworld was so far from feasible two centuries ago.
I tend to agree with the basic logic behind the US case in Connecticut that was concerned with the intended audience of the online material. I take issue with a couple of points though. While Warden Young certainly seemed to be overhyping the amount of criticism that he would get back in Virginia, all it would have taken was for one local blog to hyperlink to the Advocate or Courant story, and voila, the material is all over the state. Or, in terms of time, if Warden Young decided to run for a Senate seat ten years down the road, that story could be pulled out of the archives and ruin his political campaign. The idea that material posted to one singular webpage stays there is generally untrue, and while I recognize all of the problems associated with prosecuting a slanderous claim in any of the fifty states according to whatever their specific laws are, the viral nature of the web is one of its most unique tendencies.
As for David's idea, I feel like access to the Internet is constantly expanding in the same way that the universe is always expanding--there's just this mass of information constantly getting bigger and bigger. To start to restrain who gets access to what material, based on some arbitrary person claiming that a standard of what is acceptable in this or that state has been broken, seems like an idea that's pushing against the momentum of this vast expansion of knowledge. Also, state firewalls a la China makes me seriously uncomfortable. Do I have an alternate solution? Not really, I think the court basically has it right--I think they could make an addendum for material that a reasonable person thinks could go viral (especially material about a private individual, not a public official), and hold those responsible for posting it, even on a blog or local newspaper site, if it ends up getting hyperlinked into other states.
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Great post, Ian. Compare the CT case you discuss to Dow Jones, which used a test based on where the effects of the posting are felt. The court in that case felt that a defendant wouldn't be subject to the laws of all 50 states (or for that matter all countries of the world) because they would know where the target of the article lived and could comply with the laws of that place without too much difficulty. However, I think you identify a real problem with respect to the permanent nature of Internet postings. While they may not cause harm in a particular jurisdiction now, they may do so in the future. The Dow Jones approach wouldn't solve this.
ReplyDeleteAs far as your proposed test for material that a reasonable person thinks could go viral, why does this really matter? Shouldn't the relevant test be related to the jurisdictions in which the target is going to care (i.e. where the audience knows the target and will pay attention to the postings) rather than all jurisdictions from which it's possible to access the posting?