Damages For Your Reputation? Rakofsky v. Internet And A Dose Of IIED

May 18, 2011

Please Don’t Say Mean Things About Me!

…”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.