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Adding to the growing body of case law on Internet jurisdiction, a federal judge in Philadelphia has held that a Web site operator cannot be sued in Pennsylvania for publishing allegedly defamatory news articles solely because the articles contained references to the Pennsylvania activities of a Pennsylvania resident. See English Sports Betting Inc. and Atiyeh v. Tostigan, et al. In so ruling, Judge Jay C. Waldman of the U.S. District Court for the Eastern District of Pennsylvania emphasized the Web site operator’s lack of contacts with the forum and specifically rejected plaintiffs’ efforts to predicate jurisdiction on the so-called “effects test” based on the contentions that the articles caused harm in Pennsylvania and that, in publishing them, the Web site operator purposely targeted a Pennsylvania resident. OFFSHORE GAMBLING ARTICLE The action arose out of allegedly defamatory articles published on two Web sites about a business figure in the offshore gambling industry named Dennis Atiyeh, who owns a Jamaican-based and Jamaican-incorporated gambling enterprise known as English Sports Betting. Atiyeh claimed that he and English Sports Betting were defamed in an article written by defendant Christopher “Sting” Tostigan reporting on Atiyeh’s allegedly criminal activities. Atiyeh and English Sports Betting brought this suit against Tostigan and the operators of two Web sites — www.playersodds.com and www.theprescription.com — that posted the articles on their sites. Theprescription.com moved to dismiss for lack of personal jurisdiction, contending that it lacked the necessary minimum contacts with Pennsylvania because theprescription.com did not conduct business, sell advertising, or own property in Pennsylvania. Theprescription.com also argued that specific jurisdiction could not be premised on the “effects test” established in Calder v. Jones, 465 U.S. 783 (1998), that has been used as an alternative jurisdictional analysis in Internet defamation cases, because the Web site’s intended audience and thus the focus of any reputational harm was not in Pennsylvania. In response, plaintiffs attempted to base jurisdiction exclusively on the “effects test,” contending that, by publishing the articles, theprescription.com “purposefully targeted a Pennsylvania resident with defamatory comments.” Plaintiffs largely based this argument on references in the articles that discuss plaintiff Atiyeh’s past brushes with the law in Pennsylvania. Granting theprescription.com’s motion and dismissing the action, Waldman accepted theprescription.com’s arguments that Pennsylvania was not the focus of the Web site or its audience. Thus, the court ruled that “the recipient audience is not linked by geography but by a common interest in off-shore sports gambling.” Further, the court continued, “[t]he brunt of any harm suffered by the plaintiff corporation would be in Jamaica.” Moreover, the court explained, “[e]ven assuming that the brunt of any harm suffered by the individual plaintiff would be in Pennsylvania, there is no showing that the defendant expressly aimed the tortious conduct at the forum.” In this regard, the court explained, “[t]here is a difference between tortious conduct targeted at a forum resident and tortious conduct expressly aimed at the forum. Were the former sufficient, a Pennsylvania resident could hale into court in Pennsylvania anyone who injured him by an intentional tortious act committed anywhere.” In addition, the court held that Pennsylvania was not the “focal point of the tortious conduct” because the articles were “targeted at the international off-shore gambling community.” This fact was significant, reasoned the court, because “[i]t is not sufficient that the brunt of the harm falls within plaintiff’s home forum, even when this was reasonably foreseeable [as] ‘[t]here is an important distinction between intentional activity which foreseeably causes injury in the forum, and intentional acts specifically targeted at the forum’” (quoting Narco Avionics, Inc. v. Sportsman’s Market Inc., 792 F. Supp. 398, 408 (E.D. Pa. 1992). The decision is potentially significant for Web site operators and other Internet businesses because it underscores that jurisdiction in a defamation action may not be based simply on plaintiff’s residence, even when the allegedly defamatory statements refer to plaintiff’s conduct within the forum. Consistent with the “purposeful availment” ordinarily required for specific jurisdiction, the court focused on the conduct of the Web site operator itself, i.e., whether it intended to reach a Pennsylvania audience or was otherwise aimed at the forum, as opposed to whether the content of the article related to the forum. Because the vast majority of Web sites are aimed at a national or, as in this case, an international audience, the court’s approach provides an important measure of protection for Web site operators that are sued in remote locations, and particularly in the home-state courts of the plaintiff.

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