Posted by Jeff from d53-237-236.try.wideopenwest.com (64.53.236.237) on Saturday, February 08, 2003 at 10:27PM :
In Reply to: Personal Jurisdiction ... i.e. International posted by Jeff from d53-237-236.try.wideopenwest.com (64.53.236.237) on Saturday, February 08, 2003 at 10:20PM :
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Personal Jurisdiction Concerns (where you can be sued)
Merely having a web site does not necessarily mean you can be sued anywhere in the country.
A newspaper or magazine can be sued for libel anyplace where it sends more than a handful
of copies. Keeton v. Hustler Magazine, 465 U.S. 770 (1984).
But not necessarily true of a web site – it depends what kind of web site you have.
The courts speak of a continuum between merely passive sites and highly interactive ones.
To sue the operator of a passive site, the plaintiff must go to the operator’s own
state, while the operator of a highly interactive site can be sued wherever the site has been
seen and used.
Some leading cases discussing this distinction are Zippo Mfg. Co. v. Zippo Dot Com,
952 F. Supp. 1119 (W.D. Pa. 1997); Cybersell v. Cybersell, 130 F.3d 414 (9 1997). th
These cases stress that the interactivity that makes one amenable to suit is
commercial interactivity; that is, the fact that the site visitor can use the site to place
commercial orders.
Some cases that have refused to allow suit far from the defendant’s home are
Cybersell; Neogen Corp. v. Neo Gen Screening, 282 F.3d 883 (6 Cir. 2002); Soma th
Medical Intern. v. Standard Chartered Bank, 196 F.3d 1292 (10 Cir. 1999); Mink th
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v. AAAA Development, 190 F.3d 333 (5 Cir. 1999) (Vermont company could not be th
sued in Texas because of a passive Internet site even though viewers could use site
to send emails to the defendant); Bensusan Restaurant Corp. v. King, 126 F.3d 25,
29 (2d Cir. 1997); Blackburn v. Walker Oriental Rug Galleries, 999 F. Supp. 636,
639 (E.D. Pa. 1998); Edberg v. Neogen Corp., 17 F. Supp. 2d 104, 113-115 (D.
Conn. 1998); Santana Prods. v. Bobrick Washroom Equip., 14 F. Supp. 2d 710, 714
(M.D. Pa. 1998); Oasis Corp. v. Judd, 132 F. Supp.2d 612, 623 (S.D. Ohio. 2001)
(gripe site allowed visitors to generate automatic letters to media and target of
criticism). An extreme case denying jurisdiction is Berthold Types Ltd v. European
Mikrograf Corp., 102 F. Supp.2d 928 (ND Ill. 2000)
Merely placing an email address or mailto link on the page is probably not enough
t o make the page sufficiently “interactive” to justify jurisdiction. Mink, supra;
Desktop Technologies v. Colorworks Reprod. & Design, 1999 U.S. Dist. LEXIS
1934; Osteotech, v. Gensci Regeneration Sciences, 6 F. Supp. 2d 349, 356 (D.N.J.
1998); Blackburn v. Walker Oriental Rug Galleries, 999 F. Supp. 636, 639 (E.D. Pa.
1998) Conseco, Inc. v. Hickerson, 698 N.E.2d 816 (Ind. Ct. App. 1998).
Note some cases seem to go against the pattern: Inset Systems v. Instruction Set, 937 F.
Supp. 161 (D. Conn. 161).
State courts tend to be less friendly to this sliding scale analysis. E.g., Pavlovich v. Superior
Court, 91 Cal. App.4th 404, 109 Cal. Rptr. 2d 909 (2001); Kubik v. Route 252, Inc., 762
A.2d 1119, 1124-1125 (Pa Super. 2000)
Note also: defendant’s non-internet contacts can also establish jurisd iction. Heroes, Inc. v.
Heroes Foundation, 958 F. Supp. 1 (D.D.C. 1996). So, for example, a national group can
avoid be sued throughout the US even if its web site is wholly passive.
Personal jurisdiction can be waived if the defense is not asserted at the very beginning of the
case
Consider advantages of the forum before deciding to press this issue
maybe a California plaintiff will give up if it has to come to Arkansas to sue you; but
if you are sued in California, you can use the California SLAPP statute for defense
against state law claims. Potential for attorney fee award provides a way to recruit
private lawyer
maybe an Illinois plaintiff will give up instead of coming to Delaware to sue you for
libel, but in Illinois you can raise the “innocent construction” defense, the strongest
innocent construction rule in the country
Liable only for your own content
Communications Decency Act, section 509 protects the “provider or user of an interactive computer
service” from being held liable for “information provided by another information content provider”
47 U.S.C. §§ 230(c)(1), 230(d)(3)
Several courts have held that this protects the operator of a computer bulletin board against
liability for defamation by a poster on the board, or even by a news provider that the operator
pays for content. Ben Ezra, Weinstein & Co. v. America Online, 206 F.3d 980 (10th Cir.
2000); Zeran v. America Online, 129 F.3d 327 (4th Cir. 1997); Blumenthal v. Drudge, 992
F. Supp. 44 (D.D.C. 1998).
This applies even to defendants who are not ISP’s like AOL, but simply operate a web site.
Marczeski v. Law, 122 F. Supp.2d 315, 327 (D. Conn. 2000); Barrett v. Clark, 2001 WL
881259, *9 (Cal. Super.); Schneider v. Amazon.com, 31 P.3d 37 (Wash. App. 2001). Contra
Batzel v. Cremers, 2001 US Dist LEXIS 8929 (C.D. Cal.)
exception for “intellectual property” claims: 47 U.S.C. § 230(e)(2)
can it be argued that trademarks are not intellectual property?
see In re Gucci, 126 F.3d 380, 394 (2d Cir. 1997)
-- Jeff
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