Despite advances in technology and the myriad of new platforms on which we can defame someone, traditional principles of personal jurisdiction still apply. This past January, a California appellate court reversed the trial court’s finding of personal jurisdiction and found that posting defamatory statements about a person on Facebook, while knowing the person resides in the forum state, is insufficient in itself to create the necessary minimum contacts. Burdick . Superior Court of Orange Cty., Case No. G049107 (Jan. 14, 2015). Not a surprising result in light of last year’s unanimous decision by the U.S. Supreme Court in Walden v. Fiore, which found that the plaintiffs could not exercise personal jurisdiction over the defendant “because a plaintiff’s contacts with the forum State cannot be ‘decisive in determining whether defendants’ due process rights are violated.’” (Emphasis added.)
In Burdick, the plaintiffs, California residents, filed a lawsuit against Douglas Burdick, among others, for defamation and other intentional torts. Burdick is an Illinois resident who posted defamatory statements about the plaintiffs on his personal Facebook page. Burdick filed a motion to quash service of summons based on lack of personal jurisdiction. The trial court denied Burdick’s motion; Burdick filed a petition for peremptory writ of mandate to challenge the trial court’s order. Following Walden v. Fiore, the California appellate court reversed the trial court’s decision and remanded the case for discovery on the limited issue of personal jurisdiction.
Advertising and Media
February 25, 2015
Earlier this month, a pair of bipartisan bills were introduced in Congress to provide greater access to federal agency records under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552. Both the FOIA Improvement Act (S. 337) and the FOIA Oversight and Implementation Act of 2015 (H.R. 653) would (1) codify the so-called “presumption of openness” policy of the Obama Administration, (2) limit the applicability of the FOIA exemption that protects certain privileged records – including records that reflect an agency’s deliberative process – from disclosure, (3) promote electronic access to agency records, (4) limit the use of search and duplication fees, and (5) strengthen the authority of the Office of Government Information Services (“OGIS”) and each agency’s Chief FOIA Officer. If enacted, these measures would constitute the most significant FOIA reforms in decades.
Let’s look at what the bills actually propose. The “presumption of openness” is somewhat of a misnomer, since FOIA already requires federal agencies to “disclose agency records to any person under § 552(a), unless they may be withheld pursuant to one of the nine enumerated exemptions listed in § 552(b).” U.S. Dept. of Justice v. Tax Analysts, 492 U.S. 136, 150-151, 109 S. Ct. 2841 (1989). Under the existing statute, the “strong presumption in favor of disclosure places the burden on the agency to justify the withholding of any requested documents.” U.S. Dept. of State v. Ray, 502 U.S. 164, 173, 112 S. Ct. 541 (1991). Instead of altering that presumption, the “presumption of openness” would narrow the applicability of FOIA’s exemptions by allowing agencies to withhold information under an exemption only when (1) an agency reasonably foresees that disclosure would harm an interest protected by an exemption, or (2) disclosure is otherwise prohibited by law. In other words, an agency would be unable to rely solely on the fact that a record meets the definition of an exemption to withhold a record; the agency also would need to assess any harm caused by disclosure. Whether this reform would actually decrease the use of FOIA exemptions is far from certain. Although the Obama Administration voluntarily adopted the “presumption of openness” in 2009, it substantially increased the government’s reliance on FOIA exemptions at the same time.
Advertising and Media
February 23, 2015
The American Bar Association recently convened the 20th Annual Conference of the Forum on Communications Law in Scottsdale, Arizona. Attended by over 225 of the nation’s leading media lawyers, the conference, once again, provided an outstanding forum to address the ever-expanding legal issues confronting legacy and new media in the fast-moving digital marketplace. Without question, the relentless advances in technology continue to present new challenges to the investigation and delivery of news across print, broadcast and digital platforms, and an abundant array of legal and ethical considerations.
One prominent panel discussion addressed the tension of “Press Sources and Government Secrets: Striking the Proper Balance” and featured a fascinating give and take between leading journalists and media lawyers on the one hand and the General Counsel of the Office of the Director of National Intelligence on the other. Agreeing that the risk assessment and line drawing regarding the release or publication of “government secrets” differs between government decision-makers and a free and responsible press, the panelists highlighted the delicate balancing required in a world struggling with both domestic and international security/geopolitical crises, and the immense amount of information being trafficked across various media.
Advertising and Media
February 12, 2015