International Cases in New Media Steve Baron April 21, 2009.

International Cases in New Media

Steve BaronSteve Baron

April 21, 2009April 21, 2009

MANDELL MENKES LLC 2

Wrap up on tort cases – from 4-2-09

Doe v. Friendfinder NetworkDoe v. Friendfinder Network


Doe v. Friendfinder Network

Which Court?Which Court?

Who’s the plaintiff?Who’s the plaintiff?

Who’s the defendant?Who’s the defendant?

What are they fightin’ about?What are they fightin’ about?

What is the Court asked to decide?What is the Court asked to decide?



Court = USDC – District of New HampshireCourt = USDC – District of New Hampshire

Plaintiff = Jane Doe?????Plaintiff = Jane Doe?????

Defendant = Friendfinder NetworkDefendant = Friendfinder Network

They’re fighting about an allegedly false and They’re fighting about an allegedly false and unauthorized personal adunauthorized personal ad

The Court must decide if the the complaint The Court must decide if the the complaint should be dismissed under Section 230 of the should be dismissed under Section 230 of the CDA.CDA.



What are plaintiff’s Claims?What are plaintiff’s Claims? Invasion of property/IP Rights Defamation Intentional/Negligent/ Reckless conduct Intentional infliction of emotional distress Violation of NH Consumer Protection Act False designations under Lanham Act Willful and Wanton Conduct



What claims survive the motion to dismiss What claims survive the motion to dismiss and why?and why?



Right of publicity claim – not immune from Right of publicity claim – not immune from suit under Section 230 of CDA.suit under Section 230 of CDA.

False designation of origin under Section False designation of origin under Section 43 of Lanham Act – false or misleading 43 of Lanham Act – false or misleading endorsement. Need not be a celebrity.endorsement. Need not be a celebrity.


International Cases in New Media

Common issues:Common issues: What law applies? Where can parties be sued? What impact on new (and old) media?


Mardas v. New York Times Company

Which Court?Which Court?

Who’s the plaintiff?Who’s the plaintiff?

Who’s the defendant?Who’s the defendant?

What are they fightin’ about?What are they fightin’ about?

What is the Court asked to decide?What is the Court asked to decide?


Mardas v. New York Times Company

Court = High Court of Justice – Queens Bench (United Court = High Court of Justice – Queens Bench (United Kingdom)Kingdom)

Plaintiff = John MardasPlaintiff = John Mardas Defendants = New York Times and International Herald Defendants = New York Times and International Herald

TribuneTribune The dispute involved alleged defamatory articles The dispute involved alleged defamatory articles

published in the UK (“charlatanism” and “lying”)published in the UK (“charlatanism” and “lying”) The High Court is asked to determine whether the The High Court is asked to determine whether the

“Master” (I.e. lower court) erred in dismissing the libel “Master” (I.e. lower court) erred in dismissing the libel suit because there was insufficient publication in the suit because there was insufficient publication in the UK.UK.


Madras v. New York Times Company

What does the High Court decide?What does the High Court decide?



The Master erred in dismissing the libel The Master erred in dismissing the libel claims against defendants.claims against defendants.

There were evidentiary issues concerning There were evidentiary issues concerning the nature and amount of publication in the the nature and amount of publication in the UK.UK.

In any event, the evidence presented In any event, the evidence presented suggested sufficient publication in the UK.suggested sufficient publication in the UK.



What is the impact on media?What is the impact on media? Possibility of foreign media being sued in

the UK based on fairly limited publication in the UK. ““a few dozen hits could be enough to found a a few dozen hits could be enough to found a

cause of action in England although damages cause of action in England although damages would be likely to be modest.”would be likely to be modest.”

Silver lining: in the UK, the loser pays attorney’s fees of the winner.


Libel Tourism

Defined: A plaintiff chooses the jurisdiction for a libel suit based upon where the law is likely to favor plaintiff’s case.

Was Mr. Madras a libel tourist? He lives in GreeceHe lives in Greece Defendants were incorporated outside the UKDefendants were incorporated outside the UK The amount of publication in UK was relatively The amount of publication in UK was relatively

small – as compared to the U.S. and France.small – as compared to the U.S. and France.


Free Speech Protection Act of 2009

Pending bill in CongressPending bill in Congress Aimed at curbing libel tourismAimed at curbing libel tourism Provides a federal cause of action for an injunction and Provides a federal cause of action for an injunction and

monetary remediesmonetary remedies Injunction to bar enforcement of a foreign libel judgment Injunction to bar enforcement of a foreign libel judgment

if subject speech was published in the U.S. and would if subject speech was published in the U.S. and would not be actionable under U.S. law.not be actionable under U.S. law.

Remedies: amount of foreign judgment, costs and Remedies: amount of foreign judgment, costs and attorney’s fees and damages caused by decreased attorney’s fees and damages caused by decreased publishing opportunitiespublishing opportunities


Quote of the day

““We’re leaving. . . . If you’re so cosmic, We’re leaving. . . . If you’re so cosmic, you’ll know why.”you’ll know why.” John Lennon – spoken to the Maharishi

upon departure from India

International Cases in New Media Steve Baron April 21, 2009.

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Transcript of International Cases in New Media Steve Baron April 21, 2009.