In an age where online smear campaigns and so-called “fake news” can be viewed all across the country, where is the proper venue for plaintiffs to sue if they believe they’ve been the victim of false and defamatory information spread over the internet?
That is the question a Philadelphia judge has posed to the Pennsylvania Superior Court in a case that might lead to a shift away from case law dating back more than 50 years.
Late last month, Philadelphia Court of Common Pleas Judge Arnold New issued an opinion in Fox v. Smith finding that the alleged victim of an online smear campaign could sue in Philadelphia, even though she is a resident of Delaware County and the defendants contend that the information had been aimed to Delaware County residents.
As part of his ruling, New asked the appellate courts in Pennsylvania to consider revamping case law from 1967 that, he said, “lags” behind the times.
“In the 51 years since Gaetano [v. Sharon Herald] was decided, technology drastically changed the way in which we communicate, yet the venue rules related to defamation have remained stagnant,” New wrote in his seven-page opinion issued Aug. 30. “This court humbly requests a re-evaluation of these principals in relationship to the internet, social media and the technology of the modern era.”
Fox stems from the 2017 mayoral campaign for Chester Heights, which is in Delaware County, about 20 miles outside of Philadelphia.
According to New, plaintiff Joy Michelle Fox had been the Democratic candidate running against Stacey Smith, who had been on the Republican ticket. Smith ended up beating Fox in the general election.
However, according to the allegations, during the campaign, Smith and several other defendants created a website and a campaign flyer that defamed Fox by saying she faced criminal charges for passing worthless checks.
Fox contended that the defendants “cherry-picked” information from three background search websites that had given results for “Joyce Watkins,” who had been charged for passing bad checks in North Carolina. However, according to Fox’s allegations, the information described the wrong person. Although Fox’s maiden name is Watkins, her first name is not Joyce, but Joy.
Fox alleged that the defendants promoted the website using social media and billboards in Chester Heights, and that the campaign flyers were mailed to Chester Heights residents.
According to the allegations, Fox told the defendants that the information was false on several occasions, but the defendants “refused to take down the website or otherwise remove the defamatory information.”
Fox sued in February in Philadelphia, contending that the campaign flyers were processed at a bulk mail facility in Philadelphia, and that the defamatory information was accessible to people in Philadelphia, including a friend of Fox’s.
The defendants filed preliminary objections, arguing that Philadelphia was not the proper venue. Smith contended that they did not aim the online information at Philadelphians, but rather at Delaware County residents, and that the purpose of a defamation action is to restore a person’s name in the community where they live. The defendants further contended that following Fox’s logic would mean venue would be proper in any of the state’s 67 counties, since a friend or relative could access the information from anywhere in the state.
Although New said that federal courts generally agree with the defendant’s position, he said Pennsylvania case law, dating back more than 50 years, allows Fox to bring her suit in Philadelphia, given that her friend had read the allegedly defamatory online information while in Philadelphia.
Specifically, New cited Gaetano, which was decided in 1967, and said, for the purposes of a defamation action, “publication” occurs in the county where the statement is read and understood to be defamatory.
“Therefore, under Pennsylvania law, as set forth in Gaetano, venue is proper in Philadelphia because Philadelphia is where the defamatory statement was read and understood to be defamatory of plaintiff,” New said.
However, after stressing that his task as a judge is to only apply the law, rather than “make new law,” he urged the higher courts in Pennsylvania to re-evaluate these principles in light of the technological advances since 1967.
Both Rawle & Henderson attorney Daniel Rucket, who is representing Smith, and Bryan Lentz of Bochetto & Lentz, who is representing Fox, did not return a call seeking comment.