The internet and electronic communications: what are the implications on venue in a defamation action?

Fox v. Smith, 211 A.3d 862 (Pa. Super. 2019), allocatur granted Dec. 24, 2019, appeal docket 39 EAP 2019

The Pennsylvania Supreme Court granted allocatur in this case to consider whether venue is proper in an internet-based defamation action where the purported defamation is accessed through the internet despite the lack of any other connection to the venue.

In 2017, Joy Fox ran as the Democratic candidate in the mayoral campaign held in Chester Heights, Delaware County against the Republican candidate, Stacey Smith. During the campaign, Smith and the other Appellants allegedly posted false information to a website that they created that indicated Fox had been charged with check fraud. The website contained links to background checks that seemed to prove that the false information was true. Smith and the other Appellants promoted the website to residents in the Chester Heights community via social media, campaign flyers, and billboards. Smith won the Chester Heights mayoral race.

Fox filed a complaint for defamation, among other causes of action, against Smith, the Republican Committee of Chester Heights, and the Committee for the Future of Chester Heights, and individual committee members (Smith), in Philadelphia County. Fox claimed that Philadelphia County was the proper forum, although Smith intended to only damage Fox’s reputation in Delaware County, because the website was accessed by residents in Philadelphia County, including a friend of Fox who claimed the check fraud implications were damaging to Fox’s reputation. Smith filed preliminary objections stating that Philadelphia County was inappropriate venue. The trial court overruled the preliminary objections after applying Gaetano v. Sharon Herald Co., 231 A.2d 753 (Pa. 1967), which held that “a defamation claim may be filed in a county where the material is disseminated to a third party who personally knows the plaintiff and understands the material to be defamatory.” Slip Op. at 5.

The Superior Court found that the issue is one of first impression in Pennsylvania, because the parties did not agree on whether the application of the Gaetano venue rule was proper in an internet defamation suit. The Superior Court found that the federal court’s approach to venue was instructive and tended to support Fox’s position on the venue being proper in Philadelphia County, reasoning that:

While couched in slightly different language, the above federal courts have adopted a venue rule for internet defamation that mirrors the principles of Gaetano. We follow the lead of those authorities in holding that a plaintiff may file a defamation action in any county where an internet posting causes the requisite harm to the plaintiff’s reputation. As outlined in Gaetano, this harm occurs when an internet communication is read by a third party who the plaintiff knows personally and who understands the communication to be harmful to the plaintiff’s reputation. [Citation omitted]. Since the county in which that third party lives is a place of publication, it is a place where the plaintiff may file suit.

Under this standard, the Appellants’ objection to venue in Philadelphia County was properly overruled. Fox alleged that her friend resided in Philadelphia County and read material on a website which had been posted by the Appellants. Fox’s friend understood the material to be defamatory. This reputational harm made the friend’s county of residence a place of publication and a proper venue for Fox’s defamation claim.

Slip Op. at 11.

The Superior Court also declined to limit venue based on Smith’s stated intent to only damage Fox’s reputation in Delaware County, because the Smith defendants knew or should have known that putting this type of information on the internet would be read by Fox’s neighbors and associates throughout the state and cause damage to her reputation. Slip Op. at 12.

While Judge Murray, in the concurring opinion, agreed with the Majority’s findings based on the current interpretation of the law on venue in defamation causes, she requested further guidance on electronic communications from the Supreme Court, reasoning that:

The above notwithstanding, as technology continues to grow and its application implicates various elements of both criminal and civil law, this Court will continue to be presented with novel appeals involving the use of electronic communication, the majority of which will be decided by precedent that never contemplated electronic publication. Accordingly, I write to underscore that the courts of this Commonwealth – both at the intermediate appellate and trial levels – would benefit from decisional and statutory guidance in analyzing establish legal principles such as venue.

Concurring Slip. Op. at 4-5.

The Supreme Court granted allocatur to examine:

Whether the Superior Court panel, in a matter of first impression, improperly developed a rule for determining proper venue in an internet-based defamation action that deems venue proper anywhere the purported defamation is accessed through the internet despite the lack of any other connection to the venue, a rule which abandons all of the protections accorded by the limiting characteristics of the venue rules and opens the door to unchecked forum shopping, calling for this Court to provide “decision and statutory guidance” as requested by the Opinion of the concurring panel member of the Pennsylvania Supreme Court.