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Anita Ramasastry

When a Newspaper Is Available on the Internet, Where Is It "Published" for Legal Purposes? A New Jersey Court Offers an Outmoded Answer


Thursday, September 23, 2010

Where is a newspaper that is available online "published"?  This was the issue in a recent New Jersey case.

A New Jersey statute requires certain legally-required notices -- such as notices of court-ordered sales of real estate -- to be "printed and published" in a newspaper in New Jersey.  Before the Internet, the newspaper where the notice appeared would have had to be printed and published in New Jersey in hard copy.  But now, most newspapers have online editions as well -- which New Jersey citizens with Internet access can easily read.  And, this development has opened the way for the argument to be raised that Internet publication fulfills the New Jersey statute's requirements.

In this column, I will analyze why a New Jersey court rejected that argument, and explain why I think the court's ruling was outmoded, given the increase in Internet readership and the decline of print publications.

The New Jersey Lawsuit

The facts of the case begin in January 2007, when the Board of Chosen Freeholders of Camden County, New Jersey published a notice in both The Philadelphia Inquirer and the county's local paper, the Courier-Post, seeking proposals from newspapers "for discounted newspaper advertising" for the publication of legal notices and advertisements. 

The Inquirer, although headquartered in Philadelphia, is widely read in Camden County and Southern New Jersey generally, due to the geographical proximity of both locations to Philadelphia.  The Courier-Post is headquartered in Camden County.

This Request for Proposals was issued in furtherance of the County's authority under a New Jersey statute that allows counties to select "an official newspaper or newspapers in which shall be published all advertisements and notices required by law to be published." 

Both newspapers submitted proposals.  Camden County chose the Inquirer as a cost-saving measure, because it had agreed to publish the legal notices and advertisements for Camden County at the reduced rates set forth in its proposal.

However, the Courier-Post objected, and filed suit.  A New Jersey court of appeals then held that the County's contract to publish legal notices in the Philadelphia Inquirer was prohibited by New Jersey law, because the Inquirer did not meet the statute's requirement that the newspaper be "published" in New Jersey.

Where Is a Newspaper that Appears Online "Published" For Purposes of Legally-Required Notices?

Was the court correct?  It is true that the Inquirer does not have a large physical presence in New Jersey.  (In 2008, only 130 of its 3,589 full-time and part-time employees worked in New Jersey.)   But, as noted above, the Inquirer does have a strong readership in South Jersey.  Moreover -- and, I believe, very importantly -- the Inquirer can be read online by New Jerseyans.

In reaching its conclusion that the Inquirer is not published in New Jersey, the New Jersey court relied upon a 1976 New Jersey Supreme Court decision, City of Plainfield v. Courier News, which quoted Webster's Third International Dictionary.  While recognizing that a newspaper's place of publication is an elusive concept, the New Jersey Supreme Court determined that it is best defined as the location where the newspaper is first "given to the world."

The New Jersey Supreme Court also stated that "a newspaper will have only one place of publication, namely its home office" -- for that location is where it is first given to the world.  It credited Justice Holmes, in an 1896 Supreme Court opinion, as the genesis of this rule. 

The New Jersey court did recognize the possibility that a newspaper with "national circulation, with editorial offices on both east and west coasts at which different editions were prepared and issued" might be able to successfully argue that it is published in more than one location.  However, it rejected the idea that a mere "branch office" of a regional paper could meet the home-office test.  Accordingly, it held that the Inquirer could not be granted the contract to print the Camden County notices.

Why The "Home Office" Test for a Newspaper's Location Now Seems Very Outmoded

As noted above, the relevant precedents here are from 1976 and 1896, respectively.  They made sense at the time -- but they do not make sense now, in the age of the Internet.

Before the New Jersey court, the Inquirer argued that its paper was "printed and published" in New Jersey because it can be viewed from, and printed out from, a computer located in New Jersey.  The court rejected the argument, but in the future, either New Jersey courts -- or, if necessary, the New Jersey legislature -- should accept it.  

In rejecting this argument, the New Jersey court noted that it is unlikely that a reader of the Inquirer's online version would print out the entire paper.  Moreover, the New Jersey court reasoned as follows regarding a newspaper's place of publication: "It is not the place where the reader receives the newspaper.  Thus, a reader sitting before her home computer reading an online version of The Philadelphia Inquirer is viewing a paper published in Pennsylvania, just as her neighbor reading a paper copy of The Philadelphia Inquirer at his breakfast table is also reading a newspaper published in Pennsylvania."

Under this ruling, even though the Internet allows a paper to be viewed by a wider audience, the paper's place of publication is still unchanged.  The court stated that "[t]his physical connection is significant because a local newspaper is where people will ordinarily go for local news whether online or at the local newsstand." 

Why the New Jersey Court's Reasoning Is Outdated and Outmoded

At points, the New Jersey court's opinion actually undercuts its own conclusion:  For instance, it notes the need for legal notices to be read and seen by a large cross-section of the population, and it acknowledges that online versions of paper are often viewed by larger audiences than are print versions.  

These points are accurate, and they can -- and should -- be extended.  Generally, the Internet not only offers a larger group of people the chance to read the paper, but also allows access by those who might not have read the paper at all -- from those who could not afford to pay for print versions but can access the Internet at work, to those who are disabled and house-bound.  If the idea is for legally-required notices to reach as many people as possible, the Internet's wide reach should surely be taken into account.  More and more people are reading their news online -- and the concept of a "print" newspaper is becoming increasingly outdated.  Indeed, many newspapers are struggling to keep up their print circulation and facing difficult financial times, including even the prospects of consolidation or bankruptcy.

Moreover, the notion of a newspaper's home office is less relevant today than it once was.   Today, content is being generated in many places and from many widely-dispersed sources, including not only staff reporters but also freelance writers and bloggers.   Increasingly, those who provide content to publications may never visit a publication's home office -- if such an office even exists.   For a blogging network where bloggers work at home, it may be hard to even identify a single home office.   

Certainly, one could argue that it should be up to the New Jersey legislature to change the statute here.   If one takes this view, then the New Jersey court was correct in literally applying the New Jersey Supreme Court's prior holding about printing and publishing.  However, I think it is a shame that the court did not use this as an opportunity to explore -- even in dicta -- whether the statute, and prior interpretations of it still make sense in the Internet Age. 

Maybe it is time for New Jersey to revisit its law, and to change the requirements to focus on readership, circulation, page hits, or other metrics when deciding where legally-required announcements should be placed.  Meanwhile, I hope that the county is publishing the same notices on its own webpages as well, to ensure that the information that they contain reaches all those who might be interested in it -- including those without easy access to newspapers.

Anita Ramasastry, a FindLaw columnist, is the D. Wayne and Anne Gittinger Professor of Law at the University of Washington School of Law in Seattle and a Director of the Shidler Center for Law, Commerce & Technology. She has previously written on business law, cyberlaw, computer data security issues, and other legal issues for this site, which contains an archive of her columns

Ramasastry is currently on leave from the University to work for the federal government. The views expressed in this column are solely those of Ramasastry in her personal capacity and do not necessarily represent the views of any of her employers, past or present.

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