Standards for Internet Jurisdiction http://corporate.findlaw.com/litigationdisputes/standardsforinternetjurisdiction.html
This outline describes the types of activity that likely will permit a court to exercise personal jurisdiction over an Internet actor
Interactive Use vs. Passive Use
• There’s no brightline test that exists, most courts use an interactivepassive distinction when determining personal jurisdiction over someone operating a website.
• Courts have conferred personal jurisdiction in cases where interactive uses of the internet have taken place within the stae.
• Interactive contact encompasses two way online communication which forsters an ongoing business relationship
• Passive contacts are those that make information available to interested viewers.
• A website is characterized as interactive if business transactions can be conducted over the internet or if information can be exchanged with users for the purpose of soliciting
• To determine whether something is interactive or passive, the greater the commercial nature and level of interactivity associated with the site, the more likely it is that the Website
operator is purposefully availing itself.
• Courts generally have declined to assert personal jurisdiction solely on the basis of Web Site advertising. However, courts have exercised jurisdiction over Web Site operation
where additional and more active contacts with the forum took place, 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. –
• In cases where the operator maintains a passive website, courts are hesitant to exercise personal jurisdiction because there is insufficient basis to assert jurisdiction. Because they
aren’t making money off of it, they are only putting out information.
The middle Spectrum: Neither interactive nor passive
• At one side of the spectrum, an interactive actor, is financially motivated and would be subject to personal jurisdiction. The other side of the spectrum says that passive actors are
not financially motivated and only give out information about things, like announcements about upcoming events and stuff.
• There have been many cases that landed in the middle.
o Situations where a defendant operates an informational website but allows a user to exchange information with the host computer by providing email address, a tollfree
number or other forms of activity that would enable an ongoing relationship with the user to emerge or the opportunity to solicit business in the future.
o In order to determine passive or interactive, they have to look at other factors.
o For example, just have a tollfree number that is up on the site, can be perceived as an attempt to solicit business.
o if a company had customers print out order forms from online, some courts might think that this is passive, because no orders were actually placed online.
JURISDICTION IN CYBERSPACE http://www.poznaklaw.com/articles/cyberjuris.htm
• Cyberspace is a place where the internet is located.
• An electronic realm that doesn’t occupy anything, except that it relies on hardware like computer equipment and wires.
• Lawsuits are still conducted the oldfashioned way, which means that the parties physically appear in court to present their case. Generally, cases are not yet presented in
cyberspace. Someday, that will probably change.
• JURISDICTION refers to a court’s power to compel ou to physically appear in a distant forum to defend or prosecute a lawsuit.
• DUE PROCESS is embodied in the United States Constitution and in the constitutions of all the states, It provides that a court can’t force people or businesses to physically appear
in a state to defend a lawsuit unless it would be fair to make the to do so.
• The LongArm Acts specify the kind of conduct for which a nonresident defendant might have to appear in court and defend. This type of conduct includes soliciting or transacting
business within the state or committing a wrongful, harmful act. • Internet is new and the courts are only starting to decide whether business solicited or conducted entirely in cyberspace is conducted “within” a state, as defined by the LongArm
Act. And if so, whether a court may fairly exercise its jurisdictional power consistent with due process
• Someone’s conduct in cyberspace is hard to determine.
• The Blue Note Case. The Blue Note jazz club in Missouri maintains a Web site that only gives viewers information about the club. (In other words, the site is passive, rather
than interactive. An interactive site might, for example, enable viewers to download information or buy tickets.) The site also states that it is intended for use only by Missouri
residents. Nevertheless, a New York club filed suit in New York against the Missouri club, claiming that the Missouri club’s use of the name "Blue Note" infringed on the New York
club’s trademark rights in that same name. A New York court held that it did not have jurisdiction over the Missouri club because the Missouri club’s Web site was passive and was
expressly intended only for use by Missouri residents.
• All cases and prosecutions depend on the judge and the situation.
• Until better, more predictable laws regarding jurisdiction in cyberspace are enacted (if ever), business owners face a conundrum. On the one hand, if you do not conduct business
on the Internet, you risk being left behind by your competitors. On the other hand, using the Internet for business may empower a court in a distant place to acquire jurisdiction over
you. You also risk violating laws that you could not easily know even exist.
• Based on the cases decided to date, if you take some or all of the following steps you might avoid a court’s jurisdictional power at least in certain instances:
• Use a passive rather than an interactive Web site.
• Place a notice on your Web site stating that it is only for use by residents in certain identified states (such as the states in which you are willing to defend or prosecute a lawsuit).
• Place a notice on your Web site which states that by viewing or using your site, the user consents to the exclusive jurisdiction and venue of a court in your home county and your
home state (such as Cook County, Illinois) and to the exclusive use of the laws of your home state (such as Illinois).
• Limit your solicitation of business by traditional methods (such as advertising) to those states in which you are prepared to defend or prosecute a lawsuit.
• These suggestions are contrary to the purpose of the Internet, which is to promote the easy flow of information and business through cyberspace. Unfortunately, like the Wild West
in the 1800s, venturing onto the Internet is not without its hazards.
Determining Internet Jurisdiction http://www.nysscpa.org/cpajournal/2003/0703/features/f072403.htm
• Court decisions have generally defined the term “purposefully availed” as meaning that the evidence should establish an intentional interaction directed toward the forum state
• If a defendant website operator intentionally targets his site to the forum state or knowingly conducts business with forum state residents by the Internet site, then the “purposeful
availment” requirement would be satisfied.
• This intentional targeting can also be established by combining Internet contacts with other, traditional business contacts with the state.
• even when the website’s interactivity is not specifically and intentionally targeted at a forum state, the court can still exercise personal jurisdiction over a defendant if other related
traditional nonInternet contacts with the forum state exist, such as “Specific personal business trips to the forum state, telephone and fax communication directed to the forum state,
purchase contracts with forum state residents, contracts that apply the law in the forum state, and advertisements in local newspapers.”
• An error published on the Internet may be immediately accessible to many readers, but it can also be corrected and retracted promptly
• Many states have statutes that give special protection from defamation liability to publishers that promptly publish a retraction. Should Internet speech receive the same protection?
The Georgia Supreme Court recently ruled as such. In Mathis v. Cannon [573 S.E.2d 376 (2002)], it decided that the Georgia retraction statute does apply to Internet speech.
• High Court of Australia ruled that a U.S. defendant could be hauled into a foreign court.
• THIS IS BASED ON A CASE:
o The High Court ruled that the Australian courts have jurisdiction to try the Dow Jones Company, a U.S. corporation that publishes Barron’s, for libel. The High Court
ruled that personal jurisdiction existed solely because the article in question, posted on the Barron’s Online website based in New Jersey, could be viewed on the
Internet in Australia. The Australian High Court reasoned that:
Harm to reputation is done when a defamatory publication is comprehended by the reader, the listener, or the observer. This being so it would be wrong to
treat publication as if it were a unilateral act on the part of the publisher alone. It is not. It is a bilateral act in which the publisher makes it available and a
third party has it available for his or her comprehension. o The Australian Court relied on the International Covenant on Civil and Political Rights (ICCPR) in its ruling. ICCPR protects everyone against interference with privacy
and attacks on his honor and reputation. The court says that everyone has a right to the protection of the law against interference and attacks.
o BUT what about the rights to hold opinions without interference and the right to freedom of expression, what can the ICCPR do about that? The risk of local liability may
cause media corporations to think twice about publishing controversial information.
o The Australian decision poses serious concerns for U.S. entities with assets in other countries because the libel laws of Australia and other countries are the exact
reverse of American law. Under U.S. law, the burden is on the plaintiff to show that a libelous statement is false. In certain other jurisdictions, the burden is on the
defendant to show it is true
• New technology can often raise jurisdictional issues without precedent, but there is often a solution to be found
Litigation and Dispute Resolution http://www.allens.com.au/pubs/ldr/fodefjul04.htm
Background of the BANGOURA CASE:
• Ontario Superior Court of Justice ruled that it had jurisdiction to hear an internet defamation case against the Washington Post.
• The Washington Post published three articles claiming that Mr. Bangoura had been the subject of UN investigations over allegations by his colleagues of sexual harassment,
financial improperties and nepotism. Therefore, Mr. Bangoura commenced legal action for defamation against the Washington post.