Beware the Jabberwocky

Florida’s Long Arm Jurisdiction Drags Washington State Defamation Defendant into Florida Court When Allegations of Criminal Acts are Accessed by Floridians on the Defendant’s Website:

The Florida Supreme Court, at the request of the regional Federal Circuit Court of Appeals (the 11th Circuit), ruled that Tabatha Marshall’s critical statements on her consumer oriented website, TabathaMarshall.com, when accessed by several Florida residents, were sufficient to drag her into Orlando’s federal district court in this defamation suit by Internet Solutions Corporation (ISC). Internet Solutions Corp. v. Marshall, Case No. SC09-272, June 17, 2010 (Fla. 2010).

Marshall owns and operates a website wherein she posts consumer related information and commentary about retailers, vendors and Internet sites providing services to the public.  The Orlando-based employment and recruiting company, ISC, owned and operated a website VeriResume.  Marshall posted comments on her website that ISC was engaged in identify theft, collecting personal information and selling it to third parties, that ISC’s VeriResume website service was a scam and ISC used phishing operations to “steal” and gather personal information about users and sell that data to third parties.  In sum, Marshall posted comments that ISC and Veriresume were engaged in an on-going criminal activity, namely identity theft.

The Florida Supreme Court was NOT called upon to decide whether the allegations of criminal wrongdoing were true or that Marshall’s comments amounted to defamation, but rather was asked by the 11th Circuit Court of Appeals to decide whether Florida’s long arm jurisdiction statute established that Marshall, a resident of the State of Washington, could be hailed or brought into court in Florida to defend the alleged libelous statements.  The answer was YES, because Florida residents did, in fact, access Marshall’s website and comment on the alleged defamatory statements.  ISC’s complaint listed email responses from Florida residents to Marshall’s identity theft commentary about ISC’s VeriResume website.

For Internet bloggers, commentators and authors (re publishers), Lewis Carroll’s poem about the slaying of the Jabberwocky dragon casts a warning.

“Beware the Jabberwock, my son!
The jaws that bite, the claws that catch!
Beware the Jubjub bird, and shun
The frumious Bandersnatch!”

In general, the Florida Supreme Court found that the State’s long arm jurisdictional statute, Fla. Sta. 48.193(1)(b), establishes that anyone who commits a tortious act in Florida can be sued in Florida and, in the context of defamation, it is the publication of the libelous, slanderous or defamatory statements in Florida that establishes jurisdiction over non-residents.

The Court DID NOT address whether jurisdiction over non-resident Marshall was proper under the due process clause of the U.S. Constitution and specifically noted that personal jurisdiction over a non-resident is a two-prong test.  First, a determination is made whether jurisdiction is proper under Florida’s long arm statute, then a determination is made whether defendant has minimum contacts with the forum state (the Florida court) such that “the district court‘s exercising of jurisdiction over that defendant would [not] offend traditional notions of fair play and substantial justice.”  ISC v. Marshall, pg. 8, citing Horizon Aggressive Growth, L.P. v. Rothstein-Kass, P.A., 421 F.3d 1162, 1162 (11th Cir. 2005), see also Venetian Salami Co. v. New Oji Paper Co., 554 So. 2d 499 (Fla. 1989).  In fact, the federal constitutional issue of whether Marshall can be hailed into the Orlando District Court remains open since the Florida Court expressly did not rule on this topic.

“The second step [to determine jurisdiction over a non-resident] is a more restrictive one, precluding suit in any situation where the exercise of jurisdiction over the nonresident defendant would violate due process. This question is not before us in the certified question and we do not deem it necessary to broaden the question in order to address the due process inquiry.” ISC, at pg. 31.

The Florida Court noted that the elements of a defamation claim include (1) publication; (2) of a falsity; (3) wherein the actor must act with knowledge or reckless disregard as to the falsity on a matter concerning a public official, or at least negligently on a matter concerning a private person; (4) actual damages; and (5) the statement must be defamatory.  Id. at pg. 27, ftnt 8, see also, Jews for Jesus, Inc. v. Rapp, 997 So. 2d 1098, 1106 (Fla. 2008).

The Court noted that a cause of action for defamation requires publication of the defamatory statement in the State and that the statement must be causally related to the defamation action, fraud or other negligent publication. Multiple party telephone conference calls into the State wherein the defendant stated that plaintiff “had AIDS,” emails to members of a veterans’ association, some of whom were in-state and defamatory statements made by an out-of-state moderator of an Internet chat room to an in-state plaintiff all support the causation condition and the publication in Florida condition.  See, Acquadro v. Bergeron, 851 So. 2d 665, 670 (Fla. 2003); Price v. Kronenberger, 24 So. 3d 775, 776 (Fla. 5th DCA 2009); and Becker v. Hooshmand, 841 So. 2d 561 (Fla. 4th DCA 2003).  Fraudulent and negligent misrepresentations made to Florida plaintiffs also support the publication and causation condition.  Wendt v. Horowitz, 822 So. 2d 1252, 1254 (Fla. 2002); Hou v. United Airlines Corp., No. 806CV-1502-T-27TGW, 2006 WL 2884963 (M.D. Fla. Oct. 10, 2006); and OSI Indus., Inc. v. Carter, 834 So. 2d 361, 364 (Fla. 5th DCA 2003).

In conclusion, as for tortious acts committed in Florida, including defamatory statements published to Florida residents, the reach of Florida tort law is long.  Although the acts may be tortious, the U.S. Constitution further limits personal jurisdiction because the “due process inquiry requires … [the court] to determine whether ―he defendant ha[s] minimum contacts with the forum state, and if the district court‘s exercising of jurisdiction over that defendant would offend traditional notions of fair play and substantial justice.”  ISC v. Marshall, pg. 8.

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