Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Tuesday, December 18, 2007

Website Operator Granted Motion to Dismiss

The district court for the Northern District of West Virginia has dismissed a defamation lawsuit brought by a former Miss West Virginia, Allison Williams, against a website operator, Joseph Vitagliano, because the website operator lacked sufficient contacts with the state. The pageant contestant had alleged that the website had falsely linked her name and title to a pornographic tape "falsely depict[ing]" her "as a Virginia news reporter engaging in various graphic sex acts in a news van." She sued for defamation.

"Vitagliano is a citizen of the state of New York. He is the owner and developer of the website (“Taxi Driver”). Taxi Driver focuses on celebrity gossip and regularly features nude or semi-nude photographs of female celebrities. Taxi Driver also includes social, political and celebrity commentary that Vitagliano personally drafts and posts on a regular basis. There are multiple hyperlinks to other adult-oriented sites in the margins of the Taxi Driver website on which users may click if they so choose. Taxi Driver does not solicit sales, nor may visitors purchase products from the website or Vitagliano. The only income that Vitagliano generates from the website is the result of advertising arrangements he has with other online entities.

"As part of such an arrangement with the website (“JuicyBucks”), Vitagliano agreed to host on the Taxi Driver website hyperlinks to products and services of JuicyBucks. Vitagliano, thus, posted advertisement hyperlinks provided by JuicyBucks that directed users to the JuicyBucks website and products. Vitagliano rotated the links on a daily basis to feature a different JuicyBucks product.
On March 6, 2005, Taxi Driver displayed an advertisement that stated “ALLISON WILLIAMS, Miss West Virginia and TV reporter [sic] gets banged in the camera truck!” The advertisement was in the form of a hyperlink that directed users to the JuicyBucks site where they could then purchase access to view the Sex Tape. Directly beneath the hyperlink advertisement on the Taxi Driver website was text that read “Posted by vit at March 6, 2005 at 9:52 AM.” For approximately two weeks, the Allison Williams Sex Tape advertisement was one of ten links to JuicyBucks video products that Vitagliano posted on Taxi Driver.
In addition to the content of the allegedly defamatory link, several other facts concerning both Taxi Driver's internal and external makeup are relevant to whether this Court has personal jurisdiction over Vitagliano. First, in addition to providing material for web users to read and view, Vitagliano allowed people who visited Taxi Driver to send him an e-mail or post comments directly to the website. The commenting function is a product of HTML and JavaScript code that Vitagliano included in Taxi Driver's internal html composition. This feature permits interested visitors to post their name, e-mail address, url and a comment directly to the site, thereby enabling other visitors to view the feedback. The code also provides an option so that users can opt for Vitagliano to “remember them.” The e-mailing function, which is independent of the commenting function, appears twice on the face of Taxi Driver, and each e-mail link is the product of an html code.
"Next, Vitagliano engaged in activities that are commonly used on websites to attract visitors and monitor traffic. Located at the bottom center of Taxi Driver was a link to the BLT Syndicate. The stated purposes of the BLT Syndicate are “(a) to combine members’ forums into one; (b) to promote each other's sites, [and] (c) to share traffic, content, and ad revenue.” Vitagliano also incorporated metatags into Taxi Driver's internal html code which are descriptive words and phrases used to help direct search engines when indexing a website. Between 2000 to October, 2006, Taxi Driver received 16,063,967 visits. This statistic is made available by the JavaScript enabled AddfreeStats, which Vitagliano included in his site.
Vitagliano claims he has never met Allison Williams and does not have significant family or personal contacts with West Virginia, does not regularly travel to West Virginia, and, in fact, has never physically entered the state. At a hearing on May 14, 2007, Vitagliano's counsel re-asserted his client's claim that the Court had no personal jurisdiction over him because Williams had proffered no evidence that he ever intended to or did enter West Virginia."
The parties agreed that Mr. Vitagliano did not have sufficient contacts with the state of West Virginia for the Court to exercise general jurisdistion over him. But Ms. Williams argued that under Zippo, Mr. Vitagliano had established sufficient contacts with the state for personal jurisdiction. However, the Court disagreed. "In this case, the parties’ jurisdictional discovery examined the level of activity on the website but did not bring to light any evidence of Vitagliano's actual contact with West Virginia users of the Internet. In fact, despite an extensive effort, Williams has been unable to establish even a prima facie showing that a West Virginian ever clicked on the Allison Williams hyperlink or even visited Taxi Driver. Since Taxi Driver was semi-interactive, the absence of actual contacts with West Virginia dooms any argument by Williams that this Court may exercise personal jurisdiction over Vitagliano because of his websites's electronic activity. The Court therefore concludes that Vitagliano did not direct electronic activity into West Virginia and lacks sufficient minimum contacts with the State such that he would have expected to be haled into court here."
The Court therefore dismissed Mr. Vitagliano from the case. "Under Fourth Circuit case law, the central jurisdictional inquiry in the Internet domain is purposeful availment. Given the plaintiff's failure to establish a prima facie case that Vitagliano purposefully availed himself of contacts in West Virginia, it would offend notions of fair play and substantial justice to hail him into court here. Therefore, the Court GRANTS Vitagliano's motion to dismiss for lack of personal jurisdiction and DISMISSES him from this case."
However, a number of other defendants remain.
The case is Williams v. Advertising Sex LLC,  2007 U.S. Dist. LEXIS 64858, 2007 WL 2570182, (N.D. W. Va., 2007).

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