Harlan & Cimoszewicz v. Wprost
12 August 2011. Today the Warsaw Regional Court might hand down a decision on the recognition of the U.S. judgment in Harlan & Cimoszewicz v. Wprost et. al.
by Filip Wejman
Below I reproduce my comments from 2009, originally published at the blog of the American Law Program.
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Punitive Damages in Harlan & Cimoszewicz v. Wprost
October 23, 2009
Students of Freedom of Speech law might find interest in materials from following litigation:
Russell J. Harlan and Malgorzata-Natasza Cimoszewicz
v.
Wprost, Agencja Wydawniczo-reklamowa “Wprost” Sp. z o.o., Marek Krol, Fijor Publishing, Jan M. Fijor, Maciej Rybinski, and Lowell International Co.
This case can be relevant for the intersection of several concepts:
- protection against libel/defamation,
- freedom of expression and press,
- jurisdiction in international litigation,
- enforcement of foreign default judgments.
Wprost and other Defendants published or disseminated materials that Plaintiffs considered libelous.
Initially (in 2005), the law suit was brought in a Federal Court in South Carolina (SC). The SC Court dismissed the complaint. You can read the opinion here. The Defendants successfully argued that the Court lacked personal jurisdiction over them. Under the long arm statute of SC, the Court only needed to examine whether its exercise of jurisdiction over a party would comply with due process requirements. This test requires two steps: 1. A party must have minimum contacts with South Carolina. 2. Exercise of personal jurisdiction is consistent with traditional notions of fair play and substantial justice. Both conditions are necessary, and step 2 comes into consideration only if test 1 is fulfilled.
In the assessment of the minimum contacts (step 1), the SC Court followed the guidelines formulated by the U.S. Supreme Court in Keeton v. Hustler in 1984 (listen to the oral arguement in Keeton). The Supreme Court said that for a state to exercise jurisdiction, an allegedly libelous publication must achieve an adequate circulation in the state, so that the contact with the state is not random, isolated, or fortuitous. For example in Keeton, the magazine circulation of 10,000 to 15,000 in a state was not “random, isolated, or fortuitous” but sufficient to meet the minimum contacts requirement. In the SC case against Wprost, the distribution in South Carolina was limited to 1 (one) piece in subscription.
However, even this small number would allow for establishing jurisdiction, had the Plaintiffs shown that they had suffered harm from this particular one contact. They failed to demonstrate this.
Still looking at the minimum contacts requirement, another alleged link with SC jurisdiction was that Wprost can be read in South Carolina via the Internet.