Student to pay professor $3 million for internet libel

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."