July 17, 2001
IN THE SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
BANCO NACIONAL de MÉXICO, S.A.
Plaintiff,
v. Index No. 00603429
MARIO RENATO MENÉNDEZ RODRIGUEZ,
AL GIORDANO, and
THE NARCO NEWS BULLETIN,
Defendants.
____________________________________________
ELECTRONIC FRONTIER FOUNDATION (EFF)
AMICUS BRIEF IN SUPPORT OF MOTION TO DISMISS BY THE NARCO NEWS
BULLETIN
INTRODUCTION
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.
STATEMENT OF AMICUS CURIAE
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.
ARGUMENT
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).
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.
CONCLUSION
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
ELECTRONIC FRONTIER FOUNDATION
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:
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:
Which were filed together
in April 2000 with:
We have gone into
debt to file these important motions
Please lend a
hand with our defense fund
Make checks payable to "Drug
War on Trial"
Drug War on Trial
c/o Attorney Tom Lesser
39 Main Street
Northampton, MA 01060
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Drug War on Trial
narconews@hotmail.com
This
Belongs in Court?