Addressing an issue of first impression, the Pennsylvania Superior Court ruled last week that a venue analysis dating to 1967 focusing on the location of dissemination of allegedly defamatory newspapers applied to online defamation suits as well. As a result, the proper venue for Pennsylvania defamation suits based on website content is any county where a third party who knows the plaintiff personally reads the content and understands it to be harmful to the plaintiff’s reputation. The ruling enlarges the potential venue options for defamation plaintiffs and could lead to website publishers and social media posters being sued in any county in Pennsylvania.
In Fox v. Smith, et al., No. 1968 EDA 2018 (May 23, 2019), plaintiff ran for mayor of Chester Heights against one of the defendants. According to the complaint, the defendants created a website that falsely claimed the plaintiff had been charged with check fraud, and promoted that website in Chester Heights via flyers, billboards, and social media posts. Plaintiff ultimately lost the election and sued defendants alleging several causes of action, including defamation.
Rather than filing suit in Delaware County, where Chester Heights is located, plaintiff filed suit in Philadelphia County. Plaintiff alleged Philadelphia County was a proper forum because, among other things, the website containing the allegedly defamatory statements was accessed by residents in that county, including plaintiff’s personal friend, who understood the website’s claims to be damaging to plaintiff’s reputation.
Defendants filed preliminary objections asserting improper venue, but the trial court overruled the objections based on Gaetano v. Sharon Herald Co., 231 A.2d 753 (Pa. 1967), which involved a defamatory newspaper article. In Gaetano, the Pennsylvania Supreme Court held that a defamation claim may be filed in a county where the material is disseminated to a third party who personally knows the plaintiff and who understands the material to be defamatory. On appeal, the defendants asserted that Gaetano was outdated and impracticable with respect to online defamation claims. The Superior Court disagreed and affirmed the trial court’s finding that Philadelphia County was an appropriate venue.
In reaching its decision, the Superior Court closely analyzed Gaetano, noting its finding that the place of publication – where a communication was read by a third party known to the plaintiff, such as “neighbors and associates,” who understand the communication to be defamatory – was the proper forum. This comports with the primary function of a defamation claim: because the claim’s purpose is to restore an “unjustly tarnished reputation,” the location where reputational damage has occurred is the appropriate venue. As the Gaetano court noted, if a person writes a defamatory letter in one county and mails it to another, there is no publication (and no defamation) until the letter is read in the latter county, so the latter county is the site of injury.
The Superior Court observed that since the Gaetano ruling, no Pennsylvania court had deviated from the venue rule. However, the court also noted that whether Gaetano applied to an internet defamation suit was an issue of first impression. Given the lack of on-point Pennsylvania law, the Superior Court surveyed rulings from various federal courts. Ultimately, the Superior Court found that venue rules for online defamation claims in other jurisdictions mirrored what Gaetano directed.
Courts have generally agreed that place of publication of an allegedly defamatory statement is a proper venue because of the nature of a defamation claim. However, given the broad reach of the internet, that rule could conceivably make any location a proper venue. The Superior Court then noted that one federal court recently interpreting the federal venue statute, 28 U.S.C. §1391, held that the statute’s requirement that a “substantial part” of the underlying conduct must have taken place in the forum was only satisfied where a party knows the plaintiff, reads the published material, and understands it to be defamatory. This approach provided a workable restriction as to potential venues while still ensuring that a suit could be brought where reputational harm actually occurred. And, as the Superior Court noted, the approach mirrored the principles of Gaetano, regardless of the difference in medium. Thus, a proper venue for an internet defamation claim in Pennsylvania is any county in which “an internet communication is read by a third party who the plaintiff knows personally and who understands the communication to be harmful to the plaintiff’s reputation.”
The Fox v. Smith, et al. ruling provides clarity as to the continuing vitality of Gaetano and its applicability to defamation claims based on online statements. That clarification may not necessarily translate to predictability, however. While the Gaetano test provides a meaningful limitation on potential venues due to the “third party a plaintiff knows” requirement, this also injects uncertainty for potential defendants who are unlikely to know where all such third parties are located. As a result, defendants in internet-based defamation suits may be surprised to learn that they will be litigating far from their intended target audiences.