Can Foreign Plaintiffs Sue U.S.-Based Websites For Publishing Defamatory Content? Not really…

I just spoke to a Canadian reporter who had some questions about the legal liability that U.S.-based websites face from plaintiffs outside the U.S. such as folks living in Canada.   This conversation touched on many of the same issues raised in a recent Winnipeg Free Press article which suggested that the bad ruling from Kentucky was “giving locals hope”; i.e., that perhaps Canadian citizens posted on websites like www.TheDirty.com could now successfully sue to get offensive content removed.

Hope is good, but giving people false hope is not.   On that note and because this topic comes up pretty frequently, I wanted to share a few thoughts on why foreign plaintiffs (including Canadians) shouldn’t rush to sue U.S.-based websites….at least not yet.

Here’s the deal — I’ve seen many interviews with Canadian lawyers talking about U.S.-based websites CAN be sued in Canada.  These guys typically say that if a U.S.-based website posts/hosts defamatory content about a Canadian citizen, that could be sufficient to create personal jurisdiction over the website in Canada.   I don’t know if this is correct as a matter of Canadian personal jurisdiction law, and frankly I don’t really care.  For the sake of argument, let’s assume this is correct and that Canada may properly assert personal jurisdiction over a U.S. based website.

Does this mean that Canadian residents can “successfully” sue websites like TheDirty.com in Canada?  No.  Here’s why.

Let’s assume that you are Canadian, and you sue TheDirty.com in Canada.  As the lawyer for that site, I can pretty much assure you — TheDirty.com is not going to appear to defend the case.

So what happens next?  You will get a judgment from your local court that says TheDirty.com owes you money.  Maybe the court will even issue an injunction that says TheDirty.com must remove the posts about you.

Yay!  Great result, yes?  Well, not so fast….

What many people don’t realize is this — a judgment is simply a piece of paper.  By itself, it means almost nothing.   What really matters is whether the plaintiff can actually enforce the judgment, and that’s a whole different ball game.   It is also something the courts will not do for you — in other words, the judge isn’t going to get in his car and drive over to the defendant’s house and break his kneecaps if he doesn’t pay.   Well, at least I don’t think so….

In the U.S., plaintiffs are responsible for enforcing  their own judgments.  This typically involves trying to locate the defendant’s assets and using various tools (bank account garnishments, etc.) to take the defendant’s money or property away.  Jail is not an option, so if a defendant refuses to pay, there may be little you can do other than hunt for his/her assets which can be very expensive, slow, and ultimately futile.

Therein lies the rub — regardless of where the plaintiff lives, a judgment must generally be enforced where the defendant is located (or at least where the defendant’s assets are located).   This means that even if you live in Canada, and even if you get a Canadian court judgment against TheDirty.com or any other U.S. based site, you are going to have to come to the United States to enforce it.   That’s because TheDirty.com doesn’t have any money or property in Canada, so any collection efforts would have to take place here in the U.S.

OK, so why is that so important?  Canada and the United States are not enemies, so surely it must be easy to get a U.S. court to honor a Canadian judgment, right?

Wrong.

Prior to 2010, U.S. courts had broad discretion to either recognize or reject a foreign court judgment or order.  This was never automatic; i.e., just because you have a judgment from another country doesn’t mean that U.S. courts are always going to accept the judgment and enforce it here.

This rule makes sense for obvious reasons — would you really expect a U.S. court to honor a judgment from Saudi Arabia that says all women who appear in public without permission from their husbands must be buried up to their necks and stoned to death (as per Saudi law)?  Of course not.  Saudi Arabia can enforce its laws within its own borders, but it can’t reach out and demand that other countries comply with Saudi Arabian law.

As a matter of international law and with a few exceptions based on various treaties/conventions, every country has the right to decide what foreign court orders it wants to recognize and what ones it wants to ignore.  This is why accused NSA leaker Edward Snowden is hanging out in Russia eating cheese puffs from an airport vending machine rather than playing backgammon with a Taliban cellmate at Guantanamo Bay.

Every country is free to make its own laws and choices, and in 2010 the United States passed a new law severely restricting the ability of U.S. courts to honor foreign speech-based judgments.  This law is known as the “SPEECH Act of 2010” which is an acronym for the incredibly awkward title of the law — “Securing the Protection of our Enduring and Established Constitutional Heritage”.

In a nutshell, here’s what the SPEECH Act says — no court anywhere in the United States is permitted to recognize any foreign speech-based judgment unless the judgment is consistent with U.S. law.  So, this means that if you sue a website like TheDirty.com in Canada and you receive a judgment, courts here in the U.S. will refuse to honor your judgment unless YOU prove that your claims were consistent with U.S. law.   This may be an insurmountable problem because, as I have said many times before, U.S. law generally does not allow plaintiffs to sue website owners for content submitted to their sites by third parties.  You can read more about that specific issue here.

Yes, in all candor,  one federal court in Kentucky rejected my argument in the matter of Sarah Jones v. Dirty World Entertainment Recordings.  Of course, this case is both the subject of a pending appeal and it has been widely regarded as legally incorrect, so pinning your hopes on this one might not be the best idea. (UPDATE: It looks like I was right after all. On June 16, 2014, the Sixth Circuit Court of Appeals agreed with my position and reversed the Kentucky court’s decision. You can read a copy of the 6th Circuit’s ruling here).

Furthermore, a different federal court (at the same level) reached the opposite conclusion and agreed that TheDirty.com is not responsible for third party content in S.C. v. Dirty World, LLC.  Clearly, both courts can’t be right.

The bottom line here is simple — any Canadian plaintiff who is thinking about suing a U.S. based website needs to be extremely careful.   The odds of winning are (in my opinion) extremely low.  More importantly, filing a lawsuit to remove something from the Internet is like trying to smother a fire with gasoline.  Don’t believe me?  Read this: http://en.wikipedia.org/wiki/Streisand_effect and be careful what you wish for.

In closing, I always tell people the same thing — if you find yourself being targeted by online criticism, stop and think before you rush to court.  Suing often just makes it worse.   Instead, take a deep breath and try to keep it in perspective.   As a wise person once said, “If you have haters, smile — you must be doing something right.”

P.S. For more objective information about the SPEECH Act and what it covers, please read this: http://www.fas.org/sgp/crs/misc/R41417.pdf

Legal Primer – What is (and is NOT) Child Pornography?

Let me apologize in advance — this might seem like an unsavory topic for discussion. But that’s the internet for you – not everything is sunshine and rainbows. Still, there are times when even an ugly subject warrants discussion so we can all have a more educated conversation. Please keep that in mind as you consider these comments.

Every once in a while I notice a pattern in removal requests coming across my desk. At some point the pattern grows into a trend, and eventually it reaches the point where I need to say something about it. Today, the issue is child porn. Or more specifically, it’s people who want content removed from TheDirty because they claim it constitutes child porn.

Back in ancient times (circa 2007), most people who wanted stuff removed from a website like TheDirty.com based their request on classic tort theories like defamation. By the time Nik and I appeared on the Dr. Phil show in late 2010, the new trend was “cyber bullying”. Now in 2014, the phrase I’m hearing more and more often is “child pornography”. Yuck.

Let’s make one thing perfectly clear — child pornography is bad. It’s completely unacceptable, and people who create/distribute/consume child porn deserve to be punished.

One more thing — child pornography is NOT ALLOWED on TheDirty.com. So this means that any removal request that mentions child porn will be instantly granted, right? Well, not so fast…

The problem is that like cyber bullying, the epithet of child porn is overused. Not every harsh word is bullying, and not every risque photo of a minor is child porn. The line between what’s unlawful and what’s not is actually very, very complicated even for lawyers and yes, even for cops. Based on the number of removal requests we’ve received referencing child porn, it’s clear this issue is either seriously misunderstood or is being abused in a way that dilutes the extremely serious nature of the subject matter.

So, as ugly as the topic is, knowledge is power. With that in mind, let’s talk about it.

The common perception seems to go something like this — if a photo shows a nude minor, that’s automatically child porn, right?

No. This is where the analysis begins, not where it ends.

The mere fact that a photo shows a nude minor is not automatically synonymous with child pornography; “The Supreme Court has clearly established that not all images of nude children amount to child pornography because ‘nudity, without more[,] is protected expression.’” Shoemaker v. Taylor, 730 F.3d 778, 785 (9th Cir. 2013) (quoting New York v. Ferber, 458 U.S. 747, 765 n. 18, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982)); United States v. Hill, 459 F.3d 966, 970 (9th Cir. 2006) (noting, “For example, a family snapshot of a nude child bathing presumably would not be criminal.”)

Strange as it might sound at first, this rule is not crazy. Rather, it actually makes good sense. Imagine your sister has kids, and she sends you playful photos of them splashing around naked in the bath tub. Child porn? Clearly not.

The reason is simple — a photo can’t be considered child pornography unless it contains both a child and pornography. But like so many things in law, it’s more subtle and more complicated than that.

We all know what counts as a child (a minor under the age of 18). That’s the easy part.

But what about “pornography”? What does that cover?

On literally the first day of law school, my professor explained that when confronting any legal problem, you should always ask yourself: “Is there a statute on point?” If the answer is yes, then you start by looking at the language of the statute.

There are lots of different state and federal laws which address child porn and related crimes, so let’s just begin with the most common one — 18 U.S.C. § 2256. This section contains definitions for the various other federal child porn-related laws. The definition of “child pornography” is set forth in 18 U.S.C. § 2256(8) as follows –

(8) “child pornography” means any visual depiction, including any photograph, film, video, picture, or computer or computer-generated image or picture, whether made or produced by electronic, mechanical, or other means, of sexually explicit conduct, where—

(A) the production of such visual depiction involves the use of a minor engaging in sexually explicit conduct;

(B) such visual depiction is a digital image, computer image, or computer-generated image that is, or is indistinguishable from, that of a minor engaging in sexually explicit conduct; or

(C) such visual depiction has been created, adapted, or modified to appear that an identifiable minor is engaging in sexually explicit conduct.

See all those references to “sexually explicit conduct”?   That’s the key — an image can’t qualify as child porn unless it contains both a minor AND the minor is shown engaging in “sexually explicit conduct”.  This is what separates lawful photos of kids playing in a bath tub from illegal kiddie porn — one shows sexually explicit conduct and the other doesn’t.

This line is critically important from a First Amendment perspective because not all nude photos of minors are criminal, nor should they be.   In addition to harmless family photos of kids in the bath, there are many other instances of nude photos of minors which are protected under the First Amendment. One classic example is “napalm girl” from the Vietnam War.  This image shows a completely nude 9-year old girl, but is it child porn?  Absolutely not, because although it contains a minor and nudity, it lacks any “sexually explicit conduct”. Thus even though the image is disturbing, it’s protected speech not child porn.

OK, so what qualifies as “sexually explicit conduct”?  Let’s go back to the statute which has a separate definition of that term in 18 U.S.C. § 2256(2)(A) (sorry if this is slightly graphic) —

(A) Except as provided in subparagraph (B), “sexually explicit conduct” means actual or simulated—

(i) sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex;
(ii) bestiality;
(iii) masturbation;
(iv) sadistic or masochistic abuse; or
(v) lascivious exhibition of the genitals or pubic area of any person;

There is also a slightly different definition of the term in 18 U.S.C. § 2256(2)(B), but for purposes of this discussion just assume that § 2256(2)(A) covers everything you need to know.

Based on this definition it should be fairly clear what is, and what’s not, child porn. Obviously, there’s more to the analysis which is beyond the scope of today’s discussion, but hopefully you get the point. At the very least, a photo can’t be considered child porn unless it shows a minor AND that person is engaged in sex (obviously), masturbation, or “lascivious exhibition of the genitals”. That means a photo of a topless teen probably is not sufficient, and even full nudity isn’t sufficient unless the genitals or pubic region are exhibited in a “lascivious” manner.

In closing, I want to reiterate — in no way, shape or form am I defending child porn. If you see an image on TheDirty which looks like it might be child porn, please let me know immediately. If I agree it’s illegal (or if it’s even remotely close), it will be removed immediately.

On the other hand, please don’t cry wolf and please don’t over-use this term. Probably 95%+ of emails I get claiming that something is child porn end up containing no nudity at all, or at least the nudity has been completely censored/redacted. These false alarms are becoming an increasing distraction, and they make it harder for us to identify and deal with *real* claims of improper content.

**UPDATE – 9/24/2014**

Just FYI, I am not pointing fingers at anyone, but this recent “demand letter” (from a fake lawyer) is extremely typical of a request where people claim that a post contains child porn: https://twitter.com/DavidSGingras/status/514563537201815552

Here is the post this guy was complaining about: http://thedirty.com/2012/06/poor-lauren/

Do you see anything in the post that even comes close to meeting the definition of child porn? Yes, there’s a photo of a girl sitting or maybe peeing on the ground (it’s not clear). Do you see sex? NO. Do you see bestiality? NO. Do you see “lascivious exhibition of the genitals or pubic area”? NO.

When people contact me and complain that a post contains child porn, 95%+ of the time this is exactly what I find. I know the post itself may still be rude and maybe it’s inappropriate for other reasons, but it’s absolutely NOT child porn.