Ralph Fucetola, JD
On October 30, 2002, Kenneth MacKenzie, the Chief Equity Judge in a major NJ County (which is among the top ten counties in the USA as a corporate headquarters and for per capita income) issued a precedent setting Preliminary Injunction in an internet defamation and harassment case brought by the Vitamin Lawyer. Due to the privacy issues involved, the location and details of the case have been redacted. Suffice it to say that the case involved the posting of defamatory and harassing remarks on an internet "newsletter" attacking a dietary supplement purveyor and "non-public person" members of that individual's family.
The defamer has attempted to hide the location (ISP) of the site and the ownership of the URL involved, prompting the Court to craft a Preliminary Injunction that follows the ownership. The relevant language of the Order, with identifying information removed, states:
It is hereby ORDERED on this 30th day of October, 2002 that the Defendants and each of them, their agents, employees, officers, attorneys, and representatives, are hereby Preliminarily Enjoined, until further order of Court, from engaging in or performing any acts that will maintain the presence of the [offending document] (as set forth in the Verified Complaint and Amendment thereto, hereafter, Letter) at [URL] or elsewhere on the world wide web and/or internet.
Further ORDERED and MANDATED that the Letter shall be forthwith removed from the world wide web and/or internet so that there will be no further public access to the Letter through the internet media.
Further ORDERED that all persons in concert with any of the above named, or their successors or assigns, who receive copies of this Order hereafter, are hereby enjoined from posting or maintaining the Letter on the world wide web and/or internet, and that same shall be removed forthwith upon receipt of this Order.
The Court has indicated that it would set the matter down shortly for a final hearing and issuance of a Permanent Injunction. The Court based its jurisdiction on language in the Federal Anti-Cybersquatting Act and state law. Excerpts from the Plaintiffs' Brief in Support of Relief are reprinted below:
Background of the Dispute and Jurisdiction
Defendant entered into a contract with Plaintiff Company, a marketing company in ... County (Complaint Exhibit 1). The contract places jurisdiction in New Jersey.
There was a dispute between the parties concerning the quality and effectiveness of the Defendant's work product. Defendant threatened to publish a "newsletter" if he was not paid what he thought due (Exhibit 2, Exhibit 4). Payment was refused and the newsletter was published, for mailing to the subscriber list, and posted and continually republished on the internet (Exhibit 2 and 3).
There is no adequate remedy at law. The Plaintiffs therefore come before the Court of Equity seeking aid in an area of developing law. Plaintiffs assert there is a strong likelihood Plaintiffs will prevail on the merits. Plaintiffs seek a declaration from the Court regarding the legal status of the "newsletter" so it can be removed from the Internet in accordance with the site use rules promulgated by the Internet Service Provider.
The Court Has the Power to Intervene
Shannon Zelma v Market U.S.A.
Several recent cases do suggest the Court having the power to intervene. In Shannon Zelma v Market U.S.A., 343 N.J. Super 356, decided August 2, 2001, Judge Cuff was presented with an alleged right of state court action arising from the Federal Telephone Consumer Protection Act (47 USCA 227). The Court held that no special enactment by New Jersey was needed to confer jurisdiction on the State Court.
Likewise, our claim hereunder arises, in part, through the new Federal Anticybersquatting Consumer Protection Act (15 U.S.C. 1125) that makes a person liable in a civil action for trafficking in or using the domain name, personal name or famous mark of another, resulting in dilution of the trade name. Under Section 1129 Part (a) of the Act,
"any person who, on or in connection with any goods or services, or any container for goods, use in commerce any word, term, name, symbol, or device, or any combination thereof, or any false designation of origin, false or misleading description of fact, or false or misleading representation of fact...shall be liable in a civil action by any person who believes that he or she is or is likely to be damaged by such act".
The Defendant in his newsletter uses Plaintiff's name, ..., which is a protected trade name. Therefore, Defendant's use of Plaintiff's trade name is in clear violation of the Act because it is an unauthorized use and a "false" and "misleading representation of fact". The Federal statute contains no specific language limiting its enforcement to federal courts, thus under the Shannon Zelma case, the Superior Court of New Jersey has authority under the Act to provide relief.
Chapter 220, Laws of 2001
Furthermore, during the last Legislative Session in 2001, the New Jersey Legislature adopted changes to our state harassment law, under Chapter 220 of the laws of that year, to extend its protection to the Internet, by including the use of computers as a basis for a harassment claim. In this case, Defendant has continuously harassed the Plaintiffs with posting libelous statements on his newsletter by way of the Internet, through use of computers.
Dendrite International, Inc. v John Doe No. 3
Finally, this Court itself recently decided a somewhat similar Internet posting case. That decision was appealed and this Court was upheld in Dendrite International, Inc. v John Doe No. 3, 342 N.J. Super 134, decided July 11, 2001. The Appellate Division stated,
"Information contained in postings...can form the basis of litigation instituted by an individual, corporation or business entity under an array of causes of action, including breach of employment or confidentiality agreements; breach of a fiduciary duty; misappropriation of trade secrets; interference with a prospective business advantage; defamation; and other causes of action" and further, "[t]he trial court must consider and decide those applications by striking a balance between the well-established First Amendment right to speak...and the right of the plaintiff to protect its proprietary interests and reputation through the assertion of recognizable claims based on the actionable conduct of the...defendants".
While this case concerned disclosure of the identities of anonymous Internet posters, it gives courts guidance in determining when to intervene in Internet publication issues. Judicial intervention is necessary in an era where the Internet has become an important and effective medium for communicating information - or, as in this case, vicious and hurtful fantasies and falsehoods.
In the case at hand, Defendant is disseminating libelous information concerning Plaintiffs, as private individuals and as registered and protected trade names. The Plaintiffs have a strong claim of defamation and right to privacy against the Defendant, but, due to the nature of how the Defendant is defaming the Plaintiffs, judicial intervention is undeniably essential to stop the Defendant from further defaming and damaging the Plaintiffs.
In conclusion, the Plaintiffs ask the Court to grant a preliminary injunction against Defendant, to stop the publishing of defamatory statements on the Internet by way of different websites (URLs). By reposting the newsletter on different websites, the Defendant is continuously republishing the defamation, therefore tolling the statute of limitations concerning defamation.
Furthermore, the nature of the defamation and right to privacy issues in this case call for immediate judicial intervention due to the vastness of the Internet, the potential dilution of Plaintiff's trade name and reputation, the embarrassment experienced by the Plaintiffs as private individuals and the complex issue of stopping defamation on the Internet.
UPDATE -- PERMANENT INJUNCTION ISSUED!
On Friday, December 13, 2002, Judge MacKenzie held a Proof Hearing at which the Plaintiff presented testimony and documentary evidence. The Judge declared that the internet posting involved was not supported by truth and he issued a broad permanent injunction. A redacted copy of the Injunction isHere.
The Judge issued extraordinary relief based in part on the libel included in the offending letter and in part on violations of the Federal Anticybersquatting Consumer Protection Act (15 U.S.C. 1125), which the Court viewed as conferring authority on State as well as Federal courts.
Here is what the Judge Ordered in open court:
“The Court is familiar with the nature of the conflict between these parties, having dealt with the issue at an earlier hearing. And the Court is also gratified to learn that injunctive relief that was granted in interlocutory form was effective, at lease within the United States of America. However, it seems that Mr. Hxxx has not yet learned a lesson. The lesson is you cannot malign, embarrass, humiliate or otherwise in an egregious and untruthful fashion reduce the general reputation that a person has except by the truth. Here the truth does not support Mr. Hxxx’s outrageous statements. Accordingly, a permanent injunction should be entered with legs that will take it beyond the boundaries of the… fifty states and will follow Mr. Hxxx’s newsletter at least to the extent disparaging remarks are made about the plaintiffs in this case wherever throughout the world. So ordered.”
Ralph Fucetola, JD
Attorney at Law