Photo: Peshkova – Fotolia

The Pennsylvania Supreme Court has agreed to take up a case that poses a potential conundrum: How do you determine the proper venue for a defamation claim over information that was published only on the internet?

This past May, the Superior Court had a simple answer to that quandary, finding that five-decade-old precedent remains just as relevant to determining the venue of a lawsuit alleging internet defamation as it was when print still ruled the media.

In Fox v. Smith, the intermediate appellate court declined Philadelphia Court of Common Pleas Judge Arnold New's invitation to reconsider the venue rules for defamation claims in light of the technological advances that have occurred since 1967. That's the year the state Supreme Court ruled in Gaetano v. Sharon Herald that, for the purposes of determining where a defamation action should proceed, "publication" occurs in the county where the statement is read and understood to be defamatory.

On Dec. 24, the Supreme Court granted allocatur in the case, agreeing to take up a single issue: "Whether the Superior Court panel, in a matter of first impression, improperly developed a rule for determining proper venue in an internet-based defamation action that deems venue proper anywhere the purported defamation is accessed through the internet despite the lack of any other connection to the venue, a rule which abandons all of the protections accorded by the limiting characteristics of the venue rules and opens the door to unchecked forum shopping, calling for this court to provide 'decision and statutory guidance' as requested by the opinion of the concurring panel member of the Pennsylvania Superior Court?"

In Fox, plaintiff Joy Michelle Fox had been the Democratic candidate running against Stacey Smith, who had been on the Republican ticket in the 2017 mayoral campaign for Chester Heights, which is in Delaware County, about 20 miles outside of Philadelphia.

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 sued in February in Philadelphia, contending that the allegedly defamatory information online 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.

New sided with Fox, citing Gaetano, but stressed that his task as a judge is to only apply the law, rather than "make new law," and urged the higher courts in Pennsylvania to reevaluate that precedent, which he said "lags" behind the times.

But in a published May 23 opinion, a three-judge panel of the Superior Court affirmed New's ruling, while acknowledging that the issue of whether Gaetano applies to internet defamation claims is one of first impression.

"In the absence of Pennsylvania law regarding the precise issue at hand, the federal courts' approach to venue is instructive," Judge Deborah Kunselman wrote for the panel. "Although several federal courts have noted the difficulty in formulating a workable venue rule for internet defamation claims, they tend to support Fox's position that Philadelphia County is a proper forum."

Kunselman, joined by Judge Mary Murray and Senior Judge Dan Pellegrini, pointed to rulings from the Middle District of Florida and the District of Maryland that held that venue in internet defamation cases is proper wherever the plaintiff suffered reputational harm.

"While couched in slightly different language, the above federal court have adopted a venue rule for internet defamation that mirrors the principles of Gaetano," Kunselman said. "We follow the lead of those authorities in holding that a plaintiff may file a defamation action in any county where an internet posting causes the requisite harm to the plaintiff's reputation. As outlined in Gaetano, this harm occurs when 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. Since the county in which that third party lives is a place of publication, it is a place where the plaintiff may file suit."

Murray did, however, pen a separate concurring opinion requesting that the "Supreme Court, its rules committees, and our legislature provide further guidance in the evolving area of electronic communications."

"As technology continues to grow and its application implicates various elements of both criminal and civil law, this court will continue to be presented with novel appeals involving the use of electronic communication, the majority of which will be decided by precedent that never contemplated electronic publication," Murray said.

Counsel for Fox, Peter Bryant of Bochetto & Lentz in Philadelphia, could not be reached for comment.

Counsel for Smith, Daniel Rucket of Rawle & Henderson in Philadelphia, also could not be reached, nor could Mary Elizabeth Naughton Beck of Swartz Campbell in Philadelphia, who represented appellant Theresa Agostinelli.