Donner v. Der Spiegel GMBH & Co. KG

Background

Rebecca Donner sued DER SPIEGEL Gmbh & Co. KG and SPIEGEL-Verlag Rudolf Augstein Gmbh & Co. KG for defamation. The claims concerned a German-language article about Donner’s book that appeared in Der Spiegel’s print edition and online. Donner alleged that the article described her book as “false,” “pure fantasy,” and “speculation,” accused her of being a fabulist, and stated that she admitted relying on unreliable sources. She sought an injunction requiring removal of the online article, punitive damages, and interest.

The publishers were organized under German law and had their principal place of business in Hamburg, Germany. The online and print editions were primarily handled by separate defendants. The article was written and edited by people located in Germany, except that one co-author, Jasmin Loerchner, was residing in Arizona while working on it. Donner was interviewed in Berlin.

The publishers used a German service provider that partnered with Data Media, a company located in Buffalo, New York, to market and manage subscriptions in the United States. Seventeen copies of the issue containing the article were sold at New York newsstands, and the publishers identified seventy New York print subscribers. The online article received 112 page views and sixty-eight page visits from New York as of October 16, 2023. The publishers also maintained an apparently unused New York office whose lease had not been terminated.

Motions and jurisdictional standard

The publishers moved to dismiss under Federal Rule of Civil Procedure 12(b)(2) for lack of personal jurisdiction and Rule 12(b)(3) for improper venue. They alternatively sought dismissal under the doctrine of forum non conveniens, which allows a court to decline a case when another available forum is substantially more appropriate. Donner moved to transfer the case to the District of Arizona or the Central District of California.

The court explained that Donner had to make a preliminary showing that the defendants were subject to personal jurisdiction in New York. Because there was no evidentiary hearing, she needed to make a prima facie showing based on legally sufficient allegations and evidence. The court first considered whether New York’s long-arm statute authorized jurisdiction; it did not reach constitutional due process because it found no statutory basis for jurisdiction.

Analysis

The court relied on Second Circuit precedent holding that, in a defamation case, merely distributing allegedly defamatory material in New York or making it available to New York readers is generally not enough to establish that an out-of-state defendant transacted business in New York. Some additional connection to New York—such as creating, researching, writing, developing, or producing part of the challenged content there—may be required.

For the print article, the court found no allegation that Data Media participated in writing or editing it, or that any writing or editing occurred in New York. The limited sales in New York therefore amounted only to distribution and did not establish purposeful business activity under New York law. The court also found that the empty New York office was not connected to the alleged defamation.

For the online article, the court rejected Donner’s argument that the interactive SPIEGEL+ website established jurisdiction. The website allowed subscribers to identify the country where they would use the subscription and enter payment information, but subscribers did not have to identify New York specifically. The court also noted the small number of New York page views and visits and the absence of evidence that the publishers received a significant portion of their digital-subscription revenue from New York. Making the article available online, even through a subscription service accessible in New York, was not enough.

The court separately rejected jurisdiction under New York Civil Practice Law and Rules § 302(a)(4), which concerns ownership, use, or possession of real property in New York. The defendants did not own the Buffalo property operated by Data Media, and Donner’s defamation claims arose from publication of the article rather than from ownership or use of New York real estate. Because Donner had not made a preliminary showing of personal jurisdiction, the court also found that she was not entitled to jurisdictional discovery.

Transfer and disposition

The court declined to transfer the case to Arizona or California. It found no showing that dismissal would prevent Donner from timely pursuing her claims in a proper forum. The court also noted that Germany was an available forum, that both parties agreed the case could be brought there, and that Germany had substantially greater connections to the parties and events. The court did not reach the publishers’ alternative improper-venue or forum non conveniens arguments.

Judge John G. Koeltl granted the defendants’ motion to dismiss for lack of personal jurisdiction and denied Donner’s motion to transfer venue. The Clerk was directed to close all pending motions and the case.