Judge Rules ISP, Server Location May Determine Jurisdiction

Court asserts that state of Virginia may prosecute Texas residents over defamatory Usenet posts.

by Patricia Fusco ISP-Planet Managing Editor [June 11, 1999]

Virginia's long-arm-of-the-law statute has reached out and grabbed the attention of America Online Inc.'s members nationwide.

Late last month a Federal District Court in Alexandria, Va., ruled that AOL members can be hauled into a Virginia court to answer for lawsuits, no matter where they live.

In the case of Bochan v. La Fontaine, Judge T.S. Ellis reasoned that because the Texas defendant used his AOL account to post an allegedly libelous message to a Usenet group, the email must have been stored temporarily in AOL's Usenet server before it was distributed to other Usenet servers.

The determination means that using an AOL server to facilitate distribution of defamatory messages authorizes Virginia's courts to bring out-of-state defendants to trial.

Does this mean that any of AOL's 17 million subscribers who write potentially objectionable messages are at risk of being forced to appear in Virginia courts?

Alec Farr, attorney for Proskauer Rose LLP said the "ruling confirms what responsible Internet lawyers have known all along, you can't smear people online without facing the consequences."

Farr added 'what is significant is that the court said that the use of an AOL email account to publish a defamatory statement satisfies the Virginia long-arm statute for jurisdiction."

The Bochan case began as a war of words among conspiracy theorists speculating about the death of President John F. Kennedy at the online newsgroup, alt.conspiracy.jfk.

According to legal papers, Steve N. Bochan, purchased a copy of a book about the JFK assassination, "Oswald Talked: The New Evidence in the JFK Assassination." Bochan disagreed with the book's authors and aired his views by posting comments to the newsgroup.

The Texas-based journalists that authored the book, Ray and Mary La Fontaine, responded to Bochan in a heated discussion over a series of Usenet posts. Another defendant, Robert Harris of Albuquerque, N.M. joined the Usenet debate.

According to the court papers, Bochan alleged that in some of their messages, the La Fontaines accused him of being a pedophile. A lawsuit for defamation and intentional infliction of emotional distress ensued.

The La Fontaines asserted that the Virginia court did not have personal jurisdiction over them. In considering the jurisdiction issue only, Judge Ellis concluded that one defendant, Harris, had business ties with Virginia through his commercial Web site. Jurisdiction over Harris was a relatively easy matter.

But the La Fontaines 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.

Because the La Fontaines posted their comments to the newsgroup using a Texas-based ISP and their AOL account, the judge determined that the 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.

Judge Ellis ruled that 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 sufficient activity in the state of Virginia to allow for jurisdiction over the La Fontaines.

Whether AOL and other ISPs take action to locate their Usenet servers at offshore locations or simply discontinue Usenet services altogether remains to be seen. AOL has not offered comment at this time.

The Virginia long-arm statute has extended its jurisdiction over AOL members worldwide. Should other states interpret long-arm statutes in the same manner, libel procedures may soon clog courtrooms throughout the U.S.

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