The problems began in April 1999, when student Glenda Miskin was
expelled from Professor John Wagner's physics course at the
University of North Dakota. Wagner sued when Miskin harassed him by
e-mail and on her web site. According to Wagner's lawyer during the
initial trial, "Ms. Miskin's statements have directly injured Dr.
Wagner by imputing to him the loathsome disease, that being an
interest in sexual acts with children".
Any disparaging statement made by one person about another,
which is communicated or published, may well be a defamatory
statement and can give rise to an action for either libel or
slander. Wagner claimed both libel and slander.
Generally speaking, slander is when a defamatory statement has
been made orally without justification. If the statement was made
in a permanent form, for example, recording words onto tape, it
would not be slander but libel.
Libellous statements are those that are recorded with some
degree of permanence. This would include statements made by e-mail
or on web sites.
Wagner also argued that the lies affected his business
relationships. He won his case in a district court and the jury
awarded him $3 million.
Miskin appealed, arguing among other things that the court
lacked jurisdiction over internet publications originating outside
the state, "especially when not particularly and exclusively
directed toward the State". She was resident in Minnesota when
publishing the comments to the site.
This month, the Supreme Court of North Dakota announced that it
disagreed with Miskin's arguments.
Internet jurisdiction is still a thorny issue. Some US courts
apply a "sliding scale" test in internet cases to determine whether
they have personal jurisdiction over a non-resident defendant,
examining the active versus passive nature of the web site at
issue. In such cases (the best known is the Zippo case), a court
looks at a web site's level of interactivity and the nature of
commercial activities conducted over the internet.
Other US courts apply the "effects test". This test requires
that the defendant intentionally engaged in an act that was
expressly aimed at the state in which the court action is raised.
The act has to cause harm in that state and the defendant has to
know that it will cause harm in that state.
Applying the effects test, Chief Justice Gerald VandeWalle
reasoned that the facts contradicted Miskin's assertion that her
internet communications were "not directed uniquely toward the
State of North Dakota." Even her web site (which still exists) used
the domain name UNDnews.com. Articles about Wagner, his lawyer and
the litigation were the primary topics.
"Contrary to her assertion," wrote Chief Justice VandeWalle, "we
conclude from the record available to us that Miskin did
particularly and directly target North Dakota with her web site,
specifically North Dakota resident John Wagner."
