Chan v. Ellis
296 Ga. 838
| Ga. | 2015Background
- Matthew Chan operated a website publishing nearly 2,000 posts critical of Linda Ellis’s copyright enforcement; some posts were crude and an "open letter" threatened to publicize more information if she continued her practices.
- Chan did not directly send these posts to Ellis; he anticipated she might see them and may have intended that she see some (including the open letter).
- Ellis discovered the posts (she visited the site and had others report on it) and sued under Georgia’s stalking statute, OCGA § 16-5-90 et seq., seeking injunctive relief.
- The trial court found Chan’s online publication constituted stalking under OCGA § 16-5-90(a)(1) and issued a permanent injunction ordering deletion of all posts relating to Ellis.
- Chan appealed, arguing publication to the public is not the statutorily proscribed "contact" and that the evidence did not show nonconsensual communication to Ellis.
- The Supreme Court of Georgia reversed, holding the posts were not the kind of directed, nonconsensual contact the stalking statute forbids.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether posting commentary on defendant's website about a person constitutes "contact" under OCGA § 16-5-90(a)(1) | Ellis: Publication about her on Chan’s site amounted to contacting her and thus stalking | Chan: Posting to a public website is not a communication directed to Ellis and therefore not "contact" | Posting to a public website generally is not "contact"; speech must be directed specifically to the person to qualify |
| Whether a communication about a person is necessarily a communication to that person | Ellis: Speech about her that she later saw equals communication to her | Chan: Being the subject of public commentary is not the same as being contacted | A communication about a person does not automatically mean it was directed to that person; Collins and Marks support this distinction |
| Whether publication of posts that Chan may have intended Ellis to see was made "without [her] consent" | Ellis: Chan intended she might see posts (open letter), so contact was nonconsensual | Chan: Ellis discovered the posts by choice (visited site, authorized commenter); she was not an unwilling listener | Even if Chan intended she see some posts, Ellis’s affirmative steps to access the site show she was not an unwilling, nonconsenting recipient; consent element not proved |
| Whether the injunction was proper given First Amendment and statutory constraints | Ellis: Stalking statute justifies protective order against harassment | Chan: Injunction reaches protected speech and overbroadly restrains publication | Court reversed without deciding full constitutional scope; held statutory definition of "contact" and record did not support stalking finding |
Key Cases Cited
- Sentinel Offender Svcs. v. Glover, 296 Ga. 315 (2014) (statutory interpretation principles)
- Deal v. Coleman, 294 Ga. 170 (2013) (presumption that legislature meant what it said)
- Johnson v. State, 264 Ga. 590 (1994) (defining "contact" as "get in touch with; communicate with")
- Collins v. Bazan, 256 Ga. App. 164 (2002) (publishing/discussing a person to others does not equal contacting that person)
- Marks v. State, 306 Ga. App. 824 (2010) (internet posts discovered by victim do not necessarily constitute contact)
- Murden v. State, 258 Ga. App. 585 (2002) (contact may occur through intermediaries when directed to the person)