What to Do When Technology Outpaces Legal Rules: Part I

In Fox v. Smith, No. 1438, February term 2018 (C.P. Philadelphia, Aug. 30), Judge Arnold L. New held that, under current caselaw, a cause of action for defamation, false light and conspiracy could have proper venue in Philadelphia County because: the plaintiff, a Democrat, was running for mayor in Chester Heights, Delaware County, in the November 2017 election; defendants included her opponent (who won) and several individuals and two Republican groups, the Republican Committee of Chester Heights and the Committee for the Future of Chester Heights; and, the defamatory statements were promulgated by the defendants creating a website where the statements resided and promulgated the website by delivering fliers in Chester Heights and by erecting billboards there advertising it, a friend of the plaintiff residing in Philadelphia County could have read in Philadelphia County the putative defamatory statements promulgated on the internet. The court reasoned that, under prior, controlling caselaw, venue for a defamation claim can arise in a county where a defamatory statement is minimally circulated and recognized by one person to be defamatory even if that county is by no means the location where the statement was made or intended to be circulated and circulation in one or more other counties is considerably greater and the place or places the statement was intended to be circulated. The Court found the controlling precedent which dictated his holding to be hopelessly out-of-date in our world of information technology, but recognized that its role as a trial court was to apply, and not rewrite, existing law, and so found venue in Philadelphia County proper and requested the appellate courts to revisit the issue as it applies to “the internet, social media and the technology of the modern era.”

The court is to be lauded both in its criticism of existing precedent and in its recognition of its role in inviting the appellate courts to rewrite that precedent rather than doing so itself. In the first part of this column, I shall discuss why the court is right on both counts.

Background