July 17, 2001




v. Index No. 00603429






Freedom of the press is a central tenet of the First Amendment and of our own Constitutional heritage. The overarching objective of the Constitution's protection of the free press is to achieve a more democratic society through facilitating the publication and dissemination of news that serves as a check on official and private power. The inexpensive, ubiquitous publishing power of the Internet has transformed the traditional conception of the "press," as millions of individuals and organizations have become online publishers. The new independent journalists of the Internet, as personified by Al Giordano, play a crucial role in preserving the democratic aspirations of First Amendment protection. The role of such journalists is especially salient as mainstream media is increasingly in the hands of fewer and fewer large corporations. The case at bar presents two issues that will play a key role in determining the future viability of online, independent journalism: (1) the ability of foreign plaintiffs to forum shop abusively, subjecting online, independent journalists to foreign laws and distant fora that will chill the Internet's free press; and (2) the freedom of online journalists to republish articles on the Internet from publications in the offline realm without unreasonably being subjected to liability. In order to best preserve the objectives of the First Amendment through encouraging the nascent field of online, independent journalism, the Court should distinguish the libel claims specific to the Narco News Bulletin website (http://www.narconews.com) from those claims concerning statements made offline. In analyzing the claims specific to Narconews.com, the Court should hold that Mexican substantive law applies and subsequently dismiss the case on forum non conveniens grounds. To grant jurisdiction in this case would place an undue burden on online, independent publishers, and would consequently be in violation of the First Amendment. If the Court conversely refuses to dismiss the case and finds that New York substantive law applies, the Court should apply a distinct, higher legal standard for establishing libel in regards to statements posted on Narconews.com that are republished from articles printed in offline publications.


The Electronic Frontier Foundation

The Electronic Frontier Foundation ("EFF") is a non-profit, civil liberties organization working to protect rights in the digital world. EFF actively encourages and challenges industry and government to support free expression, privacy, and openness in the information society. Founded in 1990, EFF is based in San Francisco. EFF has members all over the United States and maintains one of the most-linked-to Web sites in the world. (http://www.eff.org)

EFF's Interest in this Case

EFF believes that free speech is a fundamental human right, and that freedom of the press is vital to an open, democratic society. The vast web of electronic media that now connects us is heralding a new age of communications, a new way to convey speech. New digital networks offer tremendous potential to empower individuals in an ever overpowering world. While EFF is mindful of the serious issues that may arise when information flows free, EFF is dedicated to addressing such matters constructively while ensuring that fundamental rights are protected.

If the Court applies the same legal analysis to the Internet libel claims that it applies to the offline libel claims, the Court will be ignoring crucial factual distinctions between the two sets of claims and will be placing excessive burdens on online journalists that will unduly chill the independent, Internet press. The application of New York substantive law to claims alleging libel for statements made on a foreign website where the great majority of the alleged harm occurred in a foreign jurisdiction will encourage explicit forum shopping by plaintiffs. Independent, online publishers will be less willing to partake in spirited investigative journalism if they become subject to the substantive laws of any forum where jurisdiction might be found. The exercise of jurisdiction via the Internet should not serve to expose a party to the most disadvantageous state law claims existent, which the party has no notice of, or which are entirely foreign to the laws of its home forum. The excessive burden placed upon independent, Internet-based journalists in defending themselves in distant fora chills online journalistic activity, implicating online First Amendment rights that are of central concern to the Electronic Frontier Foundation.


The libel claims specific to Narconews.com should be analyzed separately from the libel claims concerning the statements Mr. Giordano or Mr. Menéndez made offline1 in print or in person. In order to best promote the expansion and growth of independent online journalism, the Court should engage in one of two alternative courses of action. First, in order to deter abusive forum shopping and best preserve the Constitutional rights of online, independent journalists, the Court should find that Mexican substantive law governs the dispute and subsequently dismiss the case on forum non conveniens grounds pursuant to CPLR 327(a). Though the Internet offers journalists an opportunity to have their works viewed by the entire world, its impact can nonetheless be distinctly local. In this particular dispute, the alleged harm felt by Banco Nacional de México, S.A. ("Banamex") predominantly would have occurred in Mexico, the plaintiff and defendant are both residents of Mexico, and the Mexican government has the greatest interest in adjudicating the dispute. Thus, according to New York procedural rules, Mexican law should not only govern the dispute, but the case should be dismissed under the doctrine of forum non conveniens. Failure to dismiss the case on forum non conveniens grounds will chill the independent, online free press and will subsequently violate the First Amendment rights of Mr. Giordano. See Buckley v. New York Post Corp., 373 F.2d 175 (2d Cir. 1967).

1 The specific "offline" claims include: the statements made by Mario Menéndez in the Village Voice article "Mario Menéndez vs. the Drug War," The Village Voice, February 23-29, 2000; the statements made by Mr. Menéndez and Mr. Giardano at the Columbia Law School Conference and at the WBAI Radio Broadcast in New York City. See Compl., paragraphs 16, 18, 22-24.

If the Court declines to find that Mexican substantive law governs and fails to dismiss the case, the Court alternatively should apply a distinct legal standard for libel claims related to republished statements that were originally published in the Mexican Newspaper Por Esto!. As promulgated in Karaduman v. Newsday, Inc., 51 N.Y.2d 531, 534, 416 N.E.2d 557, 435 N.Y.S.2d 556 (1980), the legal standard applied for republished works requires that a republisher "had or should have had, substantial reasons to question the accuracy of the articles" to be found liable. Id. at 539 (1980). The higher liability standard for the republishing of allegedly libel material is necessary to prevent the inhibition of online journalistic activity, encouraging growth in the nascent field of Internet journalism.

I. Independent, Online Journalistic Activity Requires Heightened Constitutional Protection Under the First Amendment.

The First Amendment provides that "Congress shall make no law . . . abridging the freedom of speech, or of the press." U.S. Const. amend. I. The Supreme Court has unequivocally held that the First Amendment's protection of free speech applies to speech on the Internet. See Reno v. American Civil Liberties Union, 521 U.S. 844 (1997). Quoting Blackstone, the Court in Near v. Minnesota, 283 U.S. 697, 713 (1931) recognized the vital importance of a free press, noting that "'[t]he liberty of the press is indeed essential to the nature of a free state."' Id. at 714. Furthermore, the Court has recognized that "constitutional violations may arise from the deterrent, or 'chilling,' effect of governmental [efforts] that fall short of a direct prohibition against the exercise of First Amendment rights." Laird v. Tatum, 408 U.S. 1, 11 (1972). Finally, in New York Times Co. v. Sullivan, 84 S.Ct. 710 (1964), the Supreme Court held that "libel can claim no talismanic immunity from constitutional limitations" and that libel "must be measured by standards that satisfy the First Amendment." Id. at 720.

Independent, Internet journalism embodies the democratic vision of the "freedom of the press" clause of the First Amendment. Journalists like Al Giordano are able to post their investigative efforts and the efforts of others via the Internet to the entire world, with incredibly low production and distribution costs. Given that mainstream media is increasingly in the hands of fewer and fewer corporations2 , the Internet is a crucial outlet for independent media projects such as Narconews.com. The Supreme Court notably remarked the vital importance of an independent press in a time of corporate and government conglomeration in Branzburg v. Hayes, 92 S.Ct. 2646 (1972): "As private and public aggregations of power burgeon in size and the pressures for conformity necessarily mount, there is obviously a continuing need for an independent press to disseminate a robust variety of information and opinion through reportage, investigation, and criticism, if we are to preserve our constitutional tradition of maximizing freedom of choice by encouraging diversity of expression." Id. at 2672. See also Times-Picayune Pub. Co. v. U. S., 73 S.Ct. 872 (1953) (finding that an "independent press stimulates free discussion and focuses public opinion on issues and officials as a potent check on arbitrary action or abuse.") In evaluating the various claims against Narconews.com, the Court should consider the societal importance of independent online journalists, and the ramifications that this decision will have upon their ability to freely disseminate their investigative news stories.

2 For an up to date listing of the corporate conglomerates that have come to control the mainstream media, see "Who Owns What," Columbia Journalism Review at http://www.cjr.org/owners/ (last visited June 27, 2001).

II. Failure to Conclude that Mexican Substantive Law Applies or to Dismiss the Case on Forum Non Conveniens Grounds will Unduly Burden Online, Independent Journalists and Will Chill the Free Press in Violation of the First Amendment.

A. The Court's Choice of Law Analysis Should Conclude that Mexican Substantive Law Governs the Dispute in Order to Deter Abusive Forum Shopping by Foreign Plaintiffs.

Banamex should not be permitted to escape the limitations of its home country's substantive law by engaging in blatant forum shopping against online news publishers. Allowing plaintiffs like Banamex to reap the benefits of New York substantive law in a New York courtroom against a Mexican website encourages potential foreign plaintiffs to sue in distant fora whose libel law is more advantageous, even where personal jurisdiction can marginally be found.3 Banamex's hope for a "second chance" to litigate this dispute are explicit in this case. After a lengthy criminal libel trial lasting more than two years, a Mexican judge ruled that Banamex had not been libeled by the Mexican Newspaper Por Esto! which conducted the investigation republished by Narconews.com. This decision was upheld on appeal in Mexico in May of last year, and a third attempt to press criminal charges in Mexico was thrown out of court. 4 Hernandez has yet to bring suit against either Mr. Menéndez or Mr. Giordano. Banamex's suit in New York state court for the allegedly libelous statements posted on Narconews.com is a shallow attempt to avoid yet another unfavorable verdict in Mexico under Mexican law.

3 The Electronic Frontier Foundation questions the Court's ability to find personal jurisdiction over Mr. Giordano for the Narconews.com claims solely on the existence of a passive website. See Citigroup Inc. v. City Holding Co., 97 F.Supp.2d 549 (S.D.N.Y. 2000) ("Although it is in the very nature of the internet that the allegedly infringing marks contained in these web sites can be viewed anywhere, this does not mean that the infringement occurred everywhere.... A rationale for [this] ... may be that literal application of the 'where viewed' rule would result in jurisdiction anywhere in the world in every infringement case involving a web site."). Furthermore, the existence of a contractual relationship with a New York ISP is also insufficient to warrant a finding of personal jurisdiction. Courts have found that a contract in and of itself does not automatically constitute sufficient minimum contacts to support personal jurisdiction. See Ellicott Machine Corp., Inc. v. John Holland Party Ltd., 995 F.2d 474, 478 (4th Cir.1993). In the case at bar, the litigation did not arise between Mr. Giordano and his ISP Voxel Dot Net, but rather between a third party (Banamex) and Mr. Giordano. The fact that Mr. Giordano entered into a contract for Internet services with a New York ISP does not mean that he "purposefully availed" himself of the benefits of New York to warrant a finding of personal jurisdiction. See Hanson v. Denckla, 357 U.S. 235 (1958) (finding that a defendant must have purposely availed himself of privilege of conducting activities within the forum state, thus invoking the benefits and protection of its laws to warrant a finding of personal jurisdiction).

4 See Mot. to Dismiss, paragraph 31; See also "Hacks Hit in Drugs War," June 25, 2001, The Media Guardian at http://www.mediaguardian.co.uk/mediaguardian/story/0%2C7558%2C512177%2C00.html (last visited June 29,

In order to deter abusive forum shopping and to preserve freedom of the press on the Internet, the Court should hold that Mexican law governs the Internet libel claims. New York's choice of law rules require that the court apply the substantive tort law of the state "with the most significant interest in the litigation." Lee v. Bankers Trust Co., 166 F.3d 540, 545 (2d Cir. 1999), citing Padula v. Lilarn Properties Corp., 84 N.Y.2d 519, 521, 644 N.E.2d 1001, 620 N.Y.S.2d 310 (1994). The choice-of-law principles of New York case law and those in the Restatement (Second) of Conflicts of Laws are applicable when one of the states is a foreign nation. See Restatement (Second) of Conflicts of Laws §§ 3 and 10 (1971); Hill v. Citicorp., 215 A.D.2d 117, 626 N.Y.S.2d 103 (1995). In particular to defamation cases, "the state of the plaintiff's domicile will usually have the most significant relationship to the case." Lee,166 F.3d 540, 545 (2d Cir. 1999), citing Reeves v. American Broad. Co., Inc., 719 F.2d 602, 605 (2d Cir.1983); See also Restatement (Second) of Conflict of Laws § 150(3) (1971) ("[T]he state of most significant relationship will usually be the state where the corporation ... had its principal place of business at this time, if the matter complained of was published in that state...."). "Although the preference for the plaintiff's domicile is not conclusive, the significant contacts [in a defamation case] are, almost exclusively, the parties' domiciles and the locus of the tort." Lee, 166 F.3d at 545 (internal citations omitted).

The state with the most "significant" relationship to the Narconews.com libel claims is clearly Mexico, the principal place of business of Banamex and where Banamex's reputation is most susceptible to damage. Banamex does not even have a branch office in New York; it only has an "agency" in New York City that is unable to open accounts in the United States. 5 Furthermore, Mexico has the strongest interest in regulating allegedly tortious behavior that occurs within its borders. New York's interest in the Internet libel claims, conversely, is predominantly founded upon the Narco News Bulletin website's accessibility via the Internet within its borders. The Internet's universal accessibility, however, does not categorically imply that alleged harms committed on the Internet have a universal impact or that any jurisdiction on earth should be forced to adjudicate Internet-related disputes and to apply its own substantive law.

5 See Aff. of Karen Thatcher, paragraph 2. See also Mot. to Dismiss, paragraph 4.

Though the Narconews.com website is accessible in New York and even written in English, the tort itself occurred in Mexico and the harm was felt within Mexico's jurisdiction. The place of "wrong" is Mexico. Mr. Giordano typed the allegedly libelous statements within Mexico-the fact that the ISP he utilized is headquartered in New York state, and that the ISPs servers are located in Maryland, does not change the fact that the comments emanated from Mexico. It would be no different if Mr. Giordano orally made the statements from Mexico and his words were videotaped and aired worldwide by an American broadcast station. The tort itself still occurred in Mexico. Furthermore, the harm that Banamex felt predominantly occurred in Mexico. Even if most of the readers of the Narco News Bulletin website were not Mexican, the impact felt by Banamex (be it social, legal, political, or economic) resulting from Mr. Giordano's statements still took place in Mexico, Banamex's principal place of business. Thus, if the Narconews.com's stories cause an individual in upstate New York to not invest in Banamex, or potentially subject Banamex to suit under U.S. drug trafficking laws in New York, the harm itself is still felt at Banamex's headquarters in Mexico.

The mere fact that the Internet is accessible in New York should not allow Banamex to litigate its dispute under a more favorable law than the one which would naturally govern in Mexico. As described above, the Internet in and of itself does not expand the "locus of the tort"6 beyond its natural confines, as the harm that Banamex allegedly felt as a result of Narconews.com's postings would have predominantly occurred in Mexico. Adopting a rule like the one Banamex proposes would inhibit the growth of online, independent investigative journalism by subjecting individual publishers to the laws of fora anywhere in the world. Such a rule would facilitate abusive forum shopping by plaintiffs, allowing them to search for states where jurisdiction might be found 7 and where the law is most favorable to their cause. If plaintiffs know that courts will apply the substantive law of the state most affected by the tort, they will be less likely to sue independent online journalists in foreign fora. This will in turn allow such journalists to engage in spirited journalism in their home state without the chilling fear of being subject to the foreign laws of innumerable jurisdictions.

6 The locus of a tort is generally determined by the place where the plaintiff suffered injury. See Schultz v. Boy Scouts of Am., 65 N.Y.2d 189, 195 (1985).

7 The issue of whether personal jurisdiction can be found should not be dispositive in the choice of law analysis. Narconews.com could have been "interactive," offering some of its stories for a publisher's fee and entering into contracts with the residents of New York state, thus being an "interactive" website and more likely subject to personal jurisdiction in New York courts. See Citigroup Inc. v. City Holding Co., 97 F.Supp.2d 549 (S.D.N.Y. 2000). However, a finding of personal jurisdiction alone would not negate the choice of law question which requires an independent legal analysis.

B. The Case Should be Dismissed on Forum Non Conveniens Grounds Since a Finding of Jurisdiction Would Unduly Chill the Free Press and Would Be in Violation of the First Amendment.

Just as independent, online journalists should not be subject to the laws of foreign jurisdictions, they should also not be overburdened by the expense and time of litigating disputes in such jurisdictions. The burden created by a finding of jurisdiction would unduly suppress the online free press rights of independent journalists and thus should be rejected on forum non conveniens and First Amendment grounds. Forum non conveniens in this case has both procedural and Constitutional implications that are of central importance to the future of independent, online journalism.

A court may dismiss a case on forum non conveniens grounds "where it is determined that the action, although jurisdictionally sound, would be better adjudicated elsewhere." Islamic Republic of Iran v. Pahlavi, 62 N.Y.2d 474, 478-479, 467 N.E.2d 245, 478 N.Y.S.2d 597 (1984) (internal citations omitted). New York case law requires four factors to be weighed in determining whether a case should be dismissed on forum non conveniens grounds 8 : (1) whether all parties are non-residents, (2) whether the transaction out of which the cause of action arose primarily occurred in a foreign jurisdiction, (3) the potential hardship to the defendant, and (4) whether there is an alternate forum for suit. See Islamic Republic of Iran v. Pahlavi, 62 N.Y.2d 474, 478-80, 467 N.E.2d 245, 478 N.Y.S.2d 597 (1984). As argued in the Narco News Bulletin website motion to dismiss, these relevant factors strongly support dismissal, as both parties are non-residents; the posting of allegedly libelous material occurred within the boundaries of Mexico; the defendant, an independent journalist, is of modest means and would entail a heavy burden in litigating the case in New York; and Mexico is an available, alternative forum for suit. Though Mr. Giordano may have visited New York in the past for social events or for circumstances related to this litigation, these past occurrences do not negate the excessive burden that litigating an entire lawsuit in New York will have upon an independent journalist such as himself. Other relevant public interest factors in forum non conveniens analysis include choice of law considerations and the ability of a forum state to apply intricate foreign law. See Gulf Oil Corp. v. Gilbert, 330 U.S. 501 (1947). Given that Mexican law should govern the dispute, and that a Mexican court most probably has greater expertise in applying Mexican law than a New York court, the case should be dismissed on forum non conveniens grounds.

8 Forum non conveniens, a judicially developed doctrine, is now codified in CPLR 327(a), and is primarily based upon public policy considerations. See Bata v. Bata, 105 N.E.2d 623 (1952). The doctrine recognizes that "our courts should not be under any compulsion to add to their heavy burdens by accepting jurisdiction of a cause of action having no substantial nexus with New York." Silver v. Great Amer. Ins. Co., 29 N.Y.2d 356, 361, 278 N.E.2d 619, 328 N.Y.S.2d 398 (1972).

There is also, however, a Constitutional basis to dismiss the case on forum non conveniens grounds. A finding of jurisdiction would be unconstitutional under the First Amendment given the harm that will ensue to online publishers such as Mr. Giordano. As the Internet subjects online journalists to an increasing number of foreign jurisdictions, the doctrine of forum non conveniens has taken on an even more important role in protecting online freedom of the press. Through operating as a "safeguard" against suit in distant jurisdictions, forum non conveniens minimizes the burden 9 that online journalists must endure when the legality of their news stories is challenged in a court of law. The doctrine of forum non conveniens as applied to libel cases involving online journalism, and mass media in general, thus offers a distinct way to protect and bolster the First Amendment rights of journalists and publishers. Judge Friendly of the 2nd Circuit described the Constitutional dimensions of the forum non conveniens doctrine in a libel suit involving the New York Post:

If, however, mass media should be protected not merely by appropriate substantive defenses to defamation actions but also by procedural rules that will enable them to have burdensome suits dismissed without the necessity of a trial and an appeal, such considerations go not to 'jurisdiction' over the defendant, which must exist quite as much when he circulates a libel within a state as when he sends a leaking can of poison there, but to the consistency with the First Amendment's objectives of the state's exercising such jurisdiction in a particular case…Putting the matter in a slightly different way, the First Amendment could be regarded as giving forum non conveniens special dimensions and constitutional stature in actions for defamation against publishers and broadcasters.

Buckley v. New York Post Corp., 373 F.2d 175, 184 (2nd Cir. 1967).

9 See Stephen H. Weiner, Forum Non Conveniens, 64 Fordham L. Rev. 845, 845 (1995) ("Any hardship to individuals from Internet-related litigation or criminal prosecutions should be minimized through application of the doctrine of forum non conveniens." Id. at 845; "The forum non coveniens doctrine...provides a safeguard against hardship to defendants from being prosecuted in distant jurisdictions based on messages sent via online information services or electronic bulletin boards." Id. at 850.)

Under Judge Friendly's analysis, a forum might be "unconstitutional" under the First Amendment for unduly suppressing freedom of the press. In interpreting the 5th Circuit's finding in Curtis Publishing Co. v. Birdsong, 360 F.2d 344 (5th Cir. 1966) that Alabama was 'not a constitutionally permissible forum' for a libel action by non-residents against a non- resident publishing company, Judge Friendly noted that "exercise of…jurisdiction in favor of non-residents who had suffered no significant harm within the state could be deemed so inappropriate as to violate the First Amendment." Buckley, 373 F.2d at 184; See also Fodor v. Berglas, 1994 WL 822477 (C.D. Cal. 1994) (finding that based on the important consideration of protecting First Amendment rights, plaintiff's choice of forum must be given less weight); See also Dworkin v. Hustler Magazine, Inc., 647 F.Supp. 1278, 1283 (D. Wyo. 1986) (holding that the burden created by a finding of jurisdiction could become a "prime consideration in a publisher's decision to report and publish items critical of national figures," and would thus violate the First Amendment's protection of the free press.)

In the case at bar, where the plaintiff has suffered no distinguishable harm in New York state as a result of the libel claims concerning the Narco News Bulletin website, failure to dismiss the case on forum non conveniens grounds would place unconstitutional burdens on Mr. Giordano. This court must not be "unmindful of the chilling effect on First Amendment rights when a defendant is subjected to a trial involving weeks or months and tremendous expense in a forum several hundred miles from his home and occupation." Dworkin, 647 F.Supp. at 1283 (internal citations omitted). To comport with the First Amendment's objective of promoting freedom of the press-of heightened import in the context of independent online journalism-the case at bar should be dismissed. 10

10 Harvard Law Professor Charles Nesson recently noted the importance of independent journalism in the Banamex case and the burdensome ramifications that finding jurisdiction will have upon investigative journalism: "if the big fish can then pursue the journalist around the world and threaten the website wherever it emanates from, that's potentially harmful to spirited investigative journalism. And that, I think, has significance." Mark K. Anderson, "A Case of Free Speech Boundaries", May 8, 2001, WiredNews at http://www.wired.com/news/politics/0,1283,43583,00.html (last visited June 18, 2001).

III. If New York Law is Found to Govern the Dispute and the Case is Not Dismissed on Forum Non Conveniens Grounds, Libel Claims Concerning Information "Republished" on the Narconews.com Should be Governed by a Higher Legal Standard.

Under the assumption that the case is not dismissed on forum non conveniens grounds and New York substantive law applies, the libel claims specific to Narconews.com's republication should be judged by a different legal standard than those made in person or published in Mario Menéndez's newspaper, Por Esto!. Of the statements that Mr. Giordano posted on the Narco News Bulletin website, some of them were republished from material originally printed in Por Esto!. The New York Court of Appeals has held that a "company or concern which simply republishes a work is entitled to place its reliance upon the research of the original publisher, absent a showing that the republisher 'had or should have had, substantial reasons to question the accuracy of the articles.'" Karaduman v. Newsday, Inc., 51 N.Y.2d 531, 534, 416 N.E.2d 557, 435 N.Y.S.2d 556 (1980) (granting summary judgment where there was no evidence in the record that a republisher had cause to doubt the veracity of the statements in question or the integrity of the reporters who gathered the underlying facts). The court found that a republisher cannot be held grossly irresponsible in the absence of facts that "would arouse the suspicions of a careful publisher or that would give cause for further inquiry." Id. at 549. The Karaduman court went on to say that a republisher has no realistic choice but to assume that carefully designed internal procedures for ensuring accuracy have been effective. Those internal procedures demand "no more than that a publisher utilize methods of verification that are reasonably calculated to produce accurate copy." Id. at 549.

In Chaiken v. VV Pub. Corp., 119 F.3d 1018 (2d Cir. 1997) the 2nd Circuit restated the Karaduman holding, finding that "[a] publisher will not be liable for an article later shown to be false if it relies upon the integrity of a reputable author and has no serious reason to question the accuracy of the information provided by that author." Id. at 1032 (where original author of allegedly defamatory article had previously written articles for publisher and for other major publications and the contents of the article and external circumstances themselves were not of the nature to suggest falsity). "Absent 'obvious reasons' to doubt the truth of an article, a [publisher] does not have the 'intolerable burden of rechecking every reporter's assertions and retracing every source before' publication." Id. at 1032; see also Gaeta v. New York News Inc., et al., 465 N.E.2d 802, 806-07, 477 N.Y.S.2d 82 (1984) (finding no gross irresponsibility where source had previously furnished accurate information, facts had inherent plausibility and publisher had no reason to suspect any animus toward the plaintiff).

The higher liability standard has also been applied in the Internet context. In Tzougrakis v. Cyveillance, Inc., 2001 WL 546789 (S.D.N.Y. 2001), the Southern District of New York court granted summary judgement to an Internet newswire that republished an allegedly libelous story, even where the newswire had editorial control over the material it released. The court found that the plaintiff could not establish even the lower standard applied to first time publishers that false and defamatory statements of and concerning the plaintiff were made with gross negligence. See Karaduman, 51 N.Y.2d at 539 (1980).

In the case at bar, Banamex needs to establish the higher standard as promulgated in Karaduman in regards to the Narco News Bulletin website statements that were republished from the articles printed in Por Esto!. The plaintiff must prove that Mr. Giordano "had or should have had, substantial reasons to question the accuracy of the articles." Id. at 539 (1980). This inquiry rests with the trier of fact. The republication of allegedly libelous statements on the Internet is distinct from the initial publication of statements that are allegedly libelous. The speed and flexibility of the Internet allows online journalists and publishers to quickly reproduce the works of other journalists with incredibly low transaction costs. The higher liability standard for the republishing of allegedly libelous material is necessary to prevent the chilling of online journalistic activity, encouraging growth in the emerging field of Internet journalism and preserving the First Amendment objectives of promoting the free press.


The Court should hold that Mexican substantive law governs the dispute and should subsequently dismiss the case on forum non conveniens grounds. This course of action will deter abusive forum shopping, best protect the First Amendment rights of Mr. Giordano, and prevent the harmful chilling of online, independent journalism. If the Court declines adopting this course of action, the Court should apply the higher legal standard for the republishing of articles from Por Esto! on Narconews.com as established in Karaduman and its progeny.

Respectfully submitted,

Cindy Cohn
Lee Tien
454 Shotwell Street
San Francisco, CA 94110
(415) 436-9333

Marcy J. Gordon
66 Pearl Street #510
New York, NY 10004-2444
(212) 514-9514

This amicus brief by EFF is joined by:

Round Two: Joint Memorandum By Narco News Bulletin and Al Giordano

"Second Affidavit by Al Giordano"

"Third Affidavit by Al Giordano"

Affidavit by Raj Dutt of Voxel.net

And a New Exhibit:

"The Mexico Papers," by Al Giordano

This memorandum and accompanying exhibits are offered to the Court in support of:

Motion to Dismiss by The Narco News Bulletin

Motion to Dismiss by Al Giordano

Which were filed together in April 2000 with:

Affidavit by Al Giordano

Affidavit by Al Giordano With Respect to Narco News Bulletin

Affidavit by Karen Thatcher concerning Banamex "Agency" in New York

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