…”IIED” is not a newfangled, high tech, improvised explosive device being used by terrorists in Afghanistan or a birth control device. It is the shorthand for a new, improvised and ill-conceived legal theory set forth by Joseph Rakofsky in the the Rakofsky v. Internet Amended Complaint. The legal theory of “Intentional Infliction of Emotional Distress.” or as Rakofsky calls it “Intentional Infliction Of Emotional Harm”. You can read here and link to other sources explaining how Joseph Rakofsky came to sue the Internet.
What he did not do was fix his jurisdictional mess. There is really no way to fix it other than sue each defendant separately in their home jurisdiction. As as been previously pointed out, Rakofsky can not get personal jurisdiction in New York over the out of state defendants for his defamation claims. Almost every defendant is out of state and in the case of one Defendant, out of the country(Canada).
The tort of IIED, generally allows recovery when the defendant engages in (1) outrageous speech or conduct that (2) causes severe emotional distress to the plaintiff, and (3) the defendant intends to cause such distress, or is aware of a high probability that the speech or conduct will cause such distress.
Maybe Rakofsky thinks he can get around the personal jurisdiction issue on the IIED claims. It does not help him. Pushing aside the unprovable elements of IIED and 1st Amendment issues for a moment, New York courts have consistently held that blogs and blog posting even if there are advertisements, do not in themselves constitute a business presence in New York for the purposes of personal jurisdiction. He has not yet grasped or for whatever reason simply does not care that he can not get to the out of state defendants unless he sues them in their home jurisdictions.
Let’s pull the 1st Amendment back in the equation. This real issue on the IIED claim is whether words alone on matters of public concern, which the Rakofsky trial as well as the ethics of attorneys certainly are, can serve as the basis of a claim for IIED. That’s what this is all about isn’t it? Words. Words of bloggers and mainstream journalists who wrote “mean things” online about Joseph Rakofsky and “damaged” him. Rakofsky claims this is enough to sustain a IIED claim. He’s wrong. It’s not just my opinion. It is also the opinion of The Supreme Court Of The United States(SCOTUS). You do not have to go to Lexis, Westlaw or the dusty law library stacks to know this. You just have to follow the news.
From the NYT:
An Egyptian blogger was sentenced Monday to three years in prison for criticizing the military in what human rights advocates called one of the more alarming violations of freedom of expression since a popular uprising led to the ouster of President Hosni Mubarak two months ago.
The blogger, Maikel Nabil, 26, had assailed the Egyptian armed forces for what he called its continuation of the corruption and anti-democratic practices of Mr. Mubarak. Mr. Nabil often quoted from reports by established human rights groups.
The charges against Mr. Nabil included insulting the military establishment and spreading false information about the armed forces. The tribunal charged him with spreading information previously published by human rights organizations like Amnesty International on the army’s use of violence against protesters, the torture of those detained inside the Egyptian Museum and the use of forced pelvic exams, known as “virginity tests,” against detained female protesters.
The main evidence against Mr. Nabil, who blogged under the name “Son of Ra,” was a CD containing 73 screen shots of entries on his blog and his personal Facebook page, according to Heba Morayef, a researcher in Egypt for Human Rights Watch, which is based in New York.
Mr. Nabil has the unusual political position in Egypt of being a pacifist as well as a champion of Israel, often praising its democracy, educational standards and innovations.
Mona Seif, a rights advocate, said Mr. Nabil may have been singled out as an easy target partly because of previous run-ins with the military and partly because of his pro-Israel views.
Apparently, the Egyptian military figures that most Egyptians won’t get too worked up about a Zionist being arrested.
Here is Nabil’s blog post, in Arabic, describing why he is pro-Israel.
There is terrorism and there is Islamophobia. Of these two the latter is apparently the more serious misdemeanor. Europe is introducing draconian measures to monitor the internet for so-called “racism,” but at the same time the European Parliament has decided to deny America access to servers with international banking data that relate to terrorist organizations.
Last January, the French Inter-ministerial Committee on Racism and Anti-Semitism met to discuss measures to ban from the Internet those websites deemed by public moralists to be “racist.” The French government is acting in accordance with resolutions of the European Parliament that urge the member states of the European Union to “combat racism and xenophobia.” The French authorities are currently working on “a plan of action at the national and international levels, mobilizing public authorities, Internet operators and special-interest groups” to combat “the expression of racist commentary on the Internet.”
A report presented to the French government on 21 January recommends “an increased action from the Central Office for the Fight against Crime in the Information Technology and Communications Sectors (French acronym OCLCTIC), an organism that collects data on illicit content online. It also recommends an improved system of information among public authorities; and a systematization of the sharing of information between the various parties.”
The report acknowledges that information via the Internet is often international, with some French bloggers being hosted in foreign countries, such as the United States. The report notes that “the international dimensions of the Internet and the different laws and cultures on the question of racism are used by some to escape their responsibilities.” Hence, it proposes that the French and American public authorities work out a plan to combat Internet racism. This plan must also “allow for the participation of national and international NGOs involved in the fight against racism on the Internet.” In the fight against “racism,” civil-liberties and privacy concerns are only of secondary importance.
One of these NGOs is the Movement Against Racism and for Friendship among Peoples (French acronym MRAP), that monitors “racism” in France. Last January, the MRAP presented a 154-page report [pdf], listing more than 2,000 URLs (including 1,000 blogs) deemed to be “racist”, “racialist”, “ethno-differentialist”, “extreme-right”, “anti-Semitic,” “Islamophobic,” “homophobic,” “ultra-Zionist,” etc. The website of the American scholar Daniel Pipes is listed on page 129 as a “neoconservative” site which “develops Islamophobic themes.”
While Europe hopes that America will assist it in its crack-down on “racist” websites and blogs, it is less keen to assist America in its battle against terrorism. In this context, civil-liberties and privacy concerns are invoked to deny the U.S. continued access to financial information from SWIFT (the Society for Worldwide Interbank Financial Telecommunication), an international banking consortium, headquartered in Brussels, which processes inter-bank data. SWIFT processes millions of transactions daily between banks and other financial institutions worldwide. It holds the data of some 8,000 banks and operates in 200 countries.
On February 11, the European Parliament overwhelmingly rejected an agreement between the European Commission and the American government ensuring that Washington has access to data to which it had direct access until SWIFT’s American servers were moved to Europe at the end of 2009. The SWIFT servers are located in the Netherlands and Switzerland.
Tracking the funding of terror groups globally has been a priority for Washington since the 9/11 2001 attacks. So far, access to the SWIFT data has produced more than 1,500 reports and numerous leads for U.S. and European security services, according to the U.S. State Department. It helped capture the mastermind of the 2002 Bali nightclub bombing that killed 202 people, and helped prevent a similar attack in Bangkok in 2003. It also helped thwart the 2006 Heathrow Airport liquid-bomb plot and a terror attack on Barcelona.
The European Parliament, however, rejected the agreement between the European Commission and the American government with 378 votes against 196 and 31 abstentions. It stated that the agreement “violates the basic principles of data-protection law.” Martin Schulz, the German group leader of the Socialists in the Parliament, said: “We want a better deal with proper safeguards for people’s privacy.” Jeanine Hennis-Plaesschaert, the Dutch spokesperson for the Liberals, said that EU “flouts its own laws on fundamental rights” if it “continues to outsource its security services to the United States without reciprocity.” She denounced the “pressure, blackmail and lobbying of the U.S.” Cecilia Malmström, the Swedish European Commissioner for Home Affairs, had to promise the Parliament that the new agreement would include “very ambitious safeguards for privacy and data protection.”
The “ambitious safeguards for privacy and protection” seem only to apply to the enemies of the West, not to the right of Europe’s own citizens to express their opinions in their blogs. On the one hand the European Parliament is pressurizing the governments of the EU member states to limit the freedom of expression of their own citizens; on the other hand it is protecting the “privacy rights” of terrorists who transfer money globally to fund their operations. If there is a terror attack in the near future, which the U.S. could have prevented with data from SWIFT that it did not have access to, the responsibility should be laid with the Schulzes and Hennis-Plasschaerts of the European Parliament.