Personal jurisdiction in Internet cases refers to a growing set of judicial precedents in American courts where personal jurisdiction has been asserted upon defendants based solely on their Internet activities. Personal jurisdiction in American civil procedure law is premised on the notion that a defendant should not be subject to the decisions of a foreign or out of state court, without having "purposely availed" himself of the benefits that the forum state has to offer. Generally, the doctrine is grounded on two main principles: courts should protect defendants from the undue burden of facing litigation in an unlimited number of possibly remote jurisdictions (in line with the due process requirements of the Constitution), and courts should prevent states from infringing on the sovereignty of other states by limiting the circumstances under which defendants can be "haled" into court.
In the Internet context, personal jurisdiction cases often involve proprietors of websites or Internet-based services that either advertise or actively promote their businesses nationally, but argue that they do not have sufficient contacts within a particular state to subject them to litigation in that state. With the growth of the Internet, courts have faced the challenge of applying long-standing principles of personal jurisdiction to a borderless communication medium that enables businesses and individuals all over the world to instantaneously interact across state boundaries. This is a rapidly changing area of law without a Supreme Court precedent. There is however, a growing consensus among federal district courts as to how to determine when personal jurisdiction may be asserted in an Internet context.Nguyen, TiTi A Survey of Personal Jurisdiction based on Internet Activity: A Return to Tradition, 19 Berkeley Tech. L.J. 519 (2004).
Types of personal jurisdiction Besides facing constitutional limitations on personal jurisdiction, a court must also comply with state long-arm statutes, which enable personal jurisdiction over a party who has committed a tort within the state. This personal jurisdiction is specific to the act, and a party cannot be sued for unrelated activity. In many instances, state long-arm statutes extend personal jurisdiction to the extent allowed by the U.S. Constitution.
There are two kinds of personal jurisdiction, general and specific jurisdiction:Cybersell, Inc. v. Cybersell, Inc., 130 F.3d 414 (9th Cir. 1997).
General personal jurisdiction Following the Supreme Court's decisions in Goodyear Dunlop Tires Operations, S.A. v. Brown (2011) and Daimler AG v. Bauman (2014), a company doing business on the Internet may be sued for any reason in the jurisdiction where it is "at home," typically its place of incorporation. Because general jurisdiction is now quite limited, courts will often look to specific personal jurisdiction to determine whether a company is amenable to suit in a given jurisdiction.
Specific personal jurisdiction In contrast, specific personal jurisdiction allows a defendant to be sued in a forum only on the basis of the defendant's contacts with the forum. A court can establish specific jurisdiction over a defendant only if he or she has "certain minimum contacts" which give rise to the action in question in the forum such that the exercise of jurisdiction "does not offend traditional notions of fair play and substantial justice."Int'l Shoe Co. v. Washington, 326 U.S. 310 (1945). Internet cases with an out-of-state defendant will often require the plaintiff to assert specific personal jurisdiction.
Where a civil action has been brought based on a defendant's Internet activities, courts have generally declined to assert personal jurisdiction solely on the basis of web advertising. Instead, courts have looked for more active contacts with a forum, such as Internet sales to the forum residents, conducting business in the forum state through numerous contacts, or entering into specific dealings with forum residents.CompuServe, Inc. v. Patterson, 89 F.3d 1257 (6th Cir. 1996). The actual number of visitors to a defendant's website from citizens of the forum state has also sometimes been considered in an analysis of minimum contacts.
Standards for personal jurisdiction in Internet cases In evaluating the assertion of personal jurisdiction in cases involving the Internet, courts have applied both traditional tests and standards customized to the online world.
Traditional tests of jurisdiction
Minimum contacts The United States Supreme Court decided in 1945 in the case of International Shoe v. Washington that for a defendant to be haled into court in a particular jurisdiction it must have at least a minimum level of contact with that state that it could reasonably expect to be sued in the courts of that state.
Following International Shoe, courts have generally applied a three-part test in evaluating minimum contacts sufficient for jurisdiction:
(1) The nonresident defendant must do some act or consummate some transaction with the forum or perform some act by which he purposefully avails himself of the privilege of conducting activities in the forum, thereby invoking the benefits and protections[;] (2) the claim must be one which arises out of or results from the defendant's forum-related activities[; and] (3) exercise of jurisdiction must be reasonable.Christopher Wolf, Standards for Internet Jurisdiction, findlaw.com (1999).
The "effects" or "Calder" test Courts may also apply the "effects" test from Calder v. Jones, 465 U.S. 783 (1984), in cases with insufficient interactivity or minimum contacts, but where an action is targeted at a particular forum.Calder v. Jones, 465 U.S. 783 (1984). In Calder, a California resident in the entertainment business sued the National Enquirer, located in Florida, for libel based on an allegedly defamatory article published by the magazine. While the article was written and edited in Florida, the Court found that personal jurisdiction was properly established in California because of the effects of the defendants' conduct in that state. As the article concerned a California resident with a career in California and relied on California sources, the Court found the defendants' "intentional, and allegedly tortious, actions were expressly aimed at California."
In the Internet context, the effects test can be used to examine the exact nature of a defendant's Internet activities to determine whether its out of state actions were directed at parties or entities within the forum state. This is referred to in the language of Calder v. Jones as "purposeful direction," which requires (a) an intentional action, that was (b) expressly aimed at the forum state, with (c) knowledge that the brunt of the injury would be felt in the forum state.Dudnikov v. Chalk & Vermilion, 514 F.3d 1063 (10th Cir. 2008). If a court finds that a defendant's actions meets the standard of purposeful direction, then personal jurisdiction may be asserted based on Internet activities which do not meet the requisite level of interactivity or minimum contacts needed for other tests of personal jurisdiction in Internet cases.
"Sliding scale" or "Zippo" test In Zippo Manufacturing Co. v. Zippo Dot Com, Inc. (1997), a federal court held that "the likelihood that general jurisdiction can be constitutionally exercised is directly proportionate to the nature and quality of commercial activity that an entity conducts over the Internet. This sliding scale is consistent with well developed general jurisdiction principles."Zippo Mfg. Co. v. Zippo Dot Com, Inc., 952 F. Supp. 1119 (W.D. Pa. 1997). The "sliding scale" or "Zippo" test has been generally accepted as the standard in federal courts in deciding personal jurisdiction in Internet cases. Such cases are now primarily decided based on a determination of the website's "interactivity". Courts have held that the greater the commercial nature and level of interactivity associated with the website, the more likely it is that the website operator has "purposefully avail[ed] itself" of the forum state's jurisdiction. Interactivity is measured through an examination of the website's features and intended uses. Websites designed to facilitate or conduct business transactions will often be characterized as interactive. In contrast, a passive website that simply makes the information available to the user will be less likely to have a basis for personal jurisdiction. Websites are thus effectively divided into three categories: websites that conduct business over the Internet, websites where users exchange information with the host computers, and websites that do little more than present information. Websites that do business over the Internet will yield a finding of purposeful availment, while websites that simply present information will not. Purposeful availment for the third type is determined by the level of interactivity and its commercial nature.
The Zippo test has been cited by many courts as a standard of analysis for personal jurisdiction with regard to the Internet, but it has also undergone criticism. Zippo provides little guidance as to how much interactivity or commercialism is enough to justify purposeful availment. Furthermore, courts have given little direction as to how those factors interact. Additionally, there is no consideration built into the Zippo test for limiting the number of jurisdictions established. Once a website is sufficiently commercial and interactive beyond a threshold set by a court, jurisdiction may be established with every state."No Bad Puns: A different Approach to the Problem of Personal Jurisdiction and the Internet" 116 Harv. L. Rev. 1821, 1833 (2003).
Cases interpreting personal jurisdiction involving the Internet within the United States
Evolution of the case law In the early 1990s, courts struggled with how to treat the Internet with regard to jurisdiction. One of the first noteworthy cases arising in this early stage was Inset Systems, Inc. v. Instruction Set, 937 F. Supp. 161 (D. Conn. 1996). The Inset court likened the company's use of the Internet to a continuous advertisement targeting customers in all states, and established an extraordinarily broad approach for Internet jurisdiction cases. Some early cases followed the Inset approach. For example, the Inset reasoning was cited by the court in Maritz, Inc. v. Cybergold, Inc. (1996) The court in Bensusan Restaurant Corp. v. King (1997), however, deviated from Inset, and established its own more tailored standard. Most notably, the court in Bensusan began looking into the nature of the website in question, holding that the website owned by the defendant was passive in nature. This launched a separate line of reasoning with regard to jurisdiction in Internet cases focused on the specific characteristics of the web, and was cited by Hearst Corp. v. Goldberger.
Within the same year of the Bensusan decision, Zippo Manufacturing Co. v. Zippo Dot Com gave rise to the Zippo test for personal jurisdiction in Internet cases. Cybersell, Inc. v. Cybersell, Inc. (1987) and Mink v. AAAA Development L.L.C. (1997) followed the approach defined by Zippo. However, many cases in the subsequent decade continued to apply the pre-internet Calder test. Geist, Michael A. Is There a There There? Toward Greater Certainty for Internet Jurisdiction, 16 Berkeley Tech. L. J. 1345 (2001) The courts in Blakey v. Continental Airlines (2000), Dudnikov v. Chalk & Vermilion (2008), and Boschetto v. Hansing (2008) all relied on the Calder standard.
Brief summaries of notable cases Pres-Kap, Inc. v. System One, Direct Access, Inc., 636 So.2d 1351 (Fla. App. 3 Dist. 1994).Pres-Kap, Inc. v. System One, Direct Access, Inc., 636 So.2d 1351 (Fla. App. 3 Dist. 1994).