To My Fellow “Rakofsky 74’ers”: I Salute You

Based upon recent Twitter reports, I am purportedly the only non-U.S. blawger (along with my law firm) named in the Rakofsky v. The Internet case (credit: Scott H. Greenfield, Esq.© ).

I will demur in disclosing my position on the merits of the defamation lawsuit, since I haven’t read it yet. Personally, I think that any defamation claim arising from my post is resoundingly [redacted] and I strongly recommend that both the plaintiff and his counsel take my advice and go [redacted].

It’s not as though I don’t stand behind the one-line statement about Rakofsky made in my original post, or the fact that truth is an absolute defence to a defamation claim in pretty much any jurisdiction that upholds the rule of law and protects freedom of expression.

It’s just that as someone who practices defamation law and knows a thing or two about conflict of laws and jurisdiction, now is not the time to express my legal position or my personal opinions.

I emphasize the phrase “personal opinions” for a number of reasons, but mostly because this lawsuit presents a variety of teaching moments, some of which have already been amplified by recent follow-up posts by some of my fellow “Rakofsky 74″ cohorts such as:

Scott “Simple” Greenfield,
Jamison “My wife told me so” Koehler,
Carolyn “My co-author has my back” Elefant
and other blawgers and putative co-defendants, most notably Colin Samuels of Infamy or Praise fame (or is it infamy?) and Joshua King at the Avvo blog.

I do have a few musings that I would like to share, and to inject some legalese, “without limiting the generality of the foregoing”:

1. This is a personal blawg, not a professional or firm-related blawg. Readers can easily find my blawg disclaimer in the side-bar which reads:

Disclaimer

This is a personal blawg. The views expressed and the content provided on this blawg (or on Twitter for that matter) is for nonprofit educational purposes and reflect my personal, not my professional, opinions. It is not, and is not intended to be, legal advice on any specific set of facts. The use of this blawg does not create a lawyer-client relationship. If you need legal assistance, consult a lawyer in your jurisdiction. If you want to talk to me directly, call my office.

The side-bar also conveniently contains Creative Commons non-commercial copyright notice:

“This work is licensed under a Creative Commons Attribution-NonCommercial-NoDerivs 3.0 Unported License.”

2. I am willfully blind. I have deliberately averted my gaze by not reading the plaintiff’s complaint linked in various posts and on Twitter. My natural sense of curiosity is tempered by 18 years of legal experience, a considerable amount of which time has focused on international litigation and arbitration, which invariably implicates issues of subject-matter and personal jurisdiction, all of which informs me on how not to submit, attorn or waive jurisdictional arguments.

3. Social media is often maligned, and I am the first to acknowledge that I have joined in the maligning, but not the malingering. There are intangible benefits to blawging and Twittering, aside from expressing and sharing one’s views on the intersection of law, politics and society. There is also the inter-connectedness and comaraderie within the Blawgosphere; albeit the connections are virtual in most cases, until the inevitable “tweet-up” in New York, although if Scott Greenfield is hosting, he will likely insist on calling it a “twit-up”.

4. Finally, while I am grateful to Al Gore for inventing the interwebz and to Google ® for making legal research so much easier, a h/t must be extended to Mark W. Bennett and Scott H. Greenfield, each of whom pointed out the New York Long Arm Statute § 302. which reads:

§ 302. Personal jurisdiction by acts of non-domiciliaries

(a) Acts which are the basis of jurisdiction. As to a cause of action arising from any of the acts enumerated in this section, a court may exercise personal jurisdiction over any non-domiciliary, or his executor or administrator, who in person or through an agent:

1. transacts any business within the state or contracts anywhere to supply goods or services in the state; or

2. commits a tortious act within the state, except as to a cause of action for defamation of character arising from the act; or

3. commits a tortious act without the state causing injury to person or property within the state, except as to a cause of action for defamation of character arising from the act, if he

(i) regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered, in the state, or

(ii) expects or should reasonably expect the act to have consequences in the state and derives substantial revenue from interstate or international commerce; or

4. owns, uses or possesses any real property situated within the state. [emphasis added]

Readers may be interested in two companion decisions by the Honourable Judge Madden of the Supreme Court of New York applying § 302 of the New York Long-Arm Statute to defamation actions against out-of-state defendants:

Henderson v Phillips, 2010 NY Slip Op 31654(U) (Sup Ct, NY Co),(June 28, 2010) Docket Number: 110632/09 per J.A. Madden, J.

Gary Null & Associates v. Phillips , 2010 NY Slip Op 20280 [29 Misc 3d 245] (June 28, 2010) (Sup Ct, NY Co), Docket Number: 110508/09 per J.A. Madden, J.

To my fellow “Rakofsky 74’ers”: I Salute You.