Cyberlaw and Jurisdictional Considerations

1.       Lindsay Lohan, a resident of California, sees on the internet that Brad Pitt, a resident of Louisiana, has posted on his Facebook page that Lindsay is, “A Cracked out Ho.” Lindsay wants to sue Brad. Please discuss all possible places that Lindsay can assert jurisdiction over Brad.

For the purpose of answering this scenario, I stipulate the following presumptions:

1.       Both parties are non-celebrities,

2.       There is a consideration by the plaintiff regarding the financial impact of travel to/from a foreign court,

3.       Both parties are solely residents of the states ascribed in the scenario and each is subject to the jurisdiction of their respective states,

4.       There is complete diversity,

5.       There is less than $75,000 at stake (thereby placing the suit solely in the hands of state courts),

6.       Any ruling concerning jurisdiction does not violate the right of the defendant to “due process”,

7.       The statement was singular in occurrence (Both states dictate a one-year statute of limitation based upon the single publication rule. However, in Louisiana, the single publication rule has been extended to encompass multiple reprints via mass media as ruled under Gregoire v. G. P. Putnam's Sons (298 N.Y. 119, 81 N.E. (2d) 45 (1948)))

In the simplest of terms, authority equates to a government’s (federal, state, tribal, etc.) legal power to act. Jurisdiction then refers to that same government’s power to exercise authority (over people, places, etc.). In order for a court to hear a case, the court must first determine jurisdiction, specifically person jurisdiction in this matter.

 In this scenario, Ms. Lohan faces a decision to seek redress from Mr. Pitt for internet defamation, specifically libel. Ms. Lohan must weigh the options of filing in either a California court, where the court is faced with determining personal jurisdiction over a non-resident, or in a Louisiana court where the defendant resides.

If Ms. Lohan decides to file against Mr. Pitt, the defendant, in California, the court is faced with first determining personal jurisdiction over a non-resident.  In this case the court first faces determining if it can “bring a [non-resident] into its adjunctive process” (Craig, 2013). In order to make such a determination the court, in its application of its long-arm statute, must weigh two significant rulings: the “minimum contacts test” established under International Shoe Co. v. Washington (326 U.S. 310, 66 S. Ct. 154, 90 L. Ed. 95 (1945)) and the “effects test” established under Calder v. Jones (465 U.S. 783, 104 S. Ct. 1482, 79 L. Ed. 2d 804, 1984 U.S. 41) (Raucher, n.d.). If the California court can answer yes to either of these legal “test”, the California courts may assert personal jurisdiction over the defendant. Ms. Lohan may proceed with filing her case within her state of residence. If California cannot assert personal jurisdiction, then Ms. Lohan faces the decision to travel to Louisiana to file her case.

As a point of order, two 2010 higher state court rulings (Ohio - Kauffman Racing Equip., L.L.C. v. Roberts, 126 Ohio St.3d 81, 2010-Ohio-2551 and Florida -  Internet Solutions Corp. v Marshall No. SC09-272) (Torralba, 2010) currently challenge previously mentioned stalwart Supreme Court precedent with regards to state long-arm statutes. Additionally, a Florida lower court ruling in 2003, Scheff v. Bock, demonstrated foreign state exercise of personal jurisdiction over a non-resident, specifically a Louisiana resident.

If Ms. Lohan, the plaintiff, were to include Facebook as a co-defendant, Facebook’s terms of service specifically incorporates a choice-of-law provision, as well as a forum selection clause, whereby “you will resolve any claim, cause of action or dispute (claim) you have with us arising out of or relating to this Statement or Facebook exclusively in the U.S. District Court for the Northern District of California or a state court located in San Mateo County, and you agree to submit to the personal jurisdiction of such courts for the purpose of litigating all such claims. The laws of the State of California will govern this Statement, as well as any claim that might arise between you and us, without regard to conflict of law provisions” (Facebook, 2015). However, the Communications Decency Act of 1996, Section 230, almost all but exonerates Facebook from liability in this matter.

Reference List

Craig, B. (2013). Cyberlaw: The Law of the Internet and Information Technology. Boston: Pearson.

Facebook. (2015). Statement of Rights and Responsibilities. Retrieved from Facebook: https://www.facebook.com/legal/terms

Raucher, S. (n.d.). RRB Law Blog. Retrieved from www.rrbattorneys.com: http://www.rrbattorneys.com/blog/civil-litigation/defamatory-social-media-posts-california-residents-dont-necessarily-subject-defamer-personal-jurisdiction-california-3

Torralba, M. (2010). State courts rule libel lawsuits extend beyond borders. The News Media & The Law, 34(3), p. 23. Retrieved from http://www.rcfp.org/browse-media-law-resources/news-media-law/news-media-and-law-summer-2010/state-courts-rule-libel-law

2.       Jay Z, a resident of Illinois, sees an ad online from Cheap Cruises R US a company registered in Delaware. This company has never sold a cruise to anyone from Illinois. Jay Z books a cruise and arrives in Florida to find out that the cruise does not exist. Please discuss all the possible places that Jay Z can assert jurisdiction over the company.

For the purpose of answering this scenario, I stipulate the following presumptions:

1.       The plaintiff is a non-celebrity,

2.       Cheap Cruises R Us is a small, independent business (non-multinational) incorporated in Delaware,

3.       Cheap Cruises R Us’ principle place of business is Delaware,

4.       There is a consideration by the plaintiff regarding the financial impact of travel to/from a foreign court,

5.       Any ruling concerning jurisdiction does not violate the right of the defendant to “due process”

As previously described in question one, jurisdiction is a determination that the government has executable authority. In order for Jay Z, the plaintiff and a resident of Illinois, to seek redress from Cheap Cruises R Us, the defendant and resident of Delaware, the courts must first determine jurisdiction. In this scenario a breach of contract is the ultimate matter of the dispute. The contract was initiated via the Internet but failed to execute in the state if Florida. The statute of limitations varies in this particular matter with Illinois’ being significantly longer than Delaware’s.

If the plaintiff chooses to file in his resident state of Illinois, the court faces a determination of personal jurisdiction. In order to make a determination in the application of its long-arm statute, the court must weigh two significant rulings: the “minimum contacts test” established under International Shoe Co. v. Washington (326 U.S. 310, 66 S. Ct. 154, 90 L. Ed. 95 (1945)) and the “effects test” established under Calder v. Jones (465 U.S. 783, 104 S. Ct. 1482, 79 L. Ed. 2d 804, 1984 U.S. 41) (Raucher, n.d.). It should be noted that tort law determinations regarding jurisdiction have traditionally been extended to contract law where the “effects” questions are slightly modified to determine “purposeful availment” (Tang, 2015) actions by the defendant.

If the Illinois court can answer yes to either of these legal “test” then the Illinois courts may assert personal jurisdiction over the defendant and the plaintiff possess the right to file his case in the Illinois state courts. If the state courts determine that they cannot assert personal jurisdiction, the plaintiff has the right to file with his case within the Delaware state courts. Furthermore, the federal courts may accept the case if a determination of complete diversity between parties can be established and the matter concerns a dollar amount in excess of $75,000. If, and only if, both criteria are met then the federal court possess diversity jurisdiction, a form of subject matter jurisdiction.  Subject matter jurisdiction grants “the authority of a particular court to hear a certain type of case” (Craig, 2013). Federal jurisdiction would include the federal courts of Illinois, Delaware, and Florida.

An additional complicating factor facing the courts in determining the matter of jurisdiction is whether or not a “Terms of Service” (ToS) agreement existed, did the plaintiff agree to the ToS, did the ToS contain a choice-of-law provision and/or choice-of-exclusive-law provision, and was the ToS valid/enforceable. A legitimate, enforceable ToS will force the plaintiff into a foreign court as predicated by the ToS. However, a recent ruling against a major online retailer, predicated by defining ToS’s as either “clickwraps” or “browsewraps” (Goldman, 2012), demonstrated the penetrability of a once-perceived ironclad means of conducting e-commerce.

Reference List

Craig, B. (2013). Cyberlaw: The Law of the Internet and Information Technology. Boston: Pearson.

Goldman, E. (2012). How Zappos' User Agreement Failed In Court and Left Zappos Legally Naked. Forbes. Retrieved from http://www.forbes.com/sites/ericgoldman/2012/10/10/how-zappos-user-agreement-failed-in-court-and-left-zappos-legally-naked/#1e52c45c2f6b

Raucher, S. (n.d.). RRB Law Blog. Retrieved from www.rrbattorneys.com: http://www.rrbattorneys.com/blog/civil-litigation/defamatory-social-media-posts-california-residents-dont-necessarily-subject-defamer-personal-jurisdiction-california-3

Tang, Z. S. (2015). Electronic Consumer Contracts in the Conflict of Law (2 ed.). Oxford: Hart Publishing.