American Bar Association
Forum on Communications Law
The Internet & Communications Law
Extra! Extra! Internet Delivers Newspapers to Foreign Jurisdictions
BY DAVID H. TOMLIN
Newspapers have embraced the Internet as a publishing medium of enormous potential.1 World Wide Web2 editions can compete with radio and television in terms of both delivery speed and content,3 and online newspapers can produce fresh editions whenever news breaks.4 A newspaper can use its Internet5 edition to offer video and audio reports in addition to its traditional text, photos, and graphics.6 Internet newspapers are also accessible to readers almost anywhere.7 The technology of online access can include the ability to let readers correspond, or even do business, with a newspaper and its advertisers at the touch of a keyboard.8
Yet these glittering opportunities come with significant new legal risks.9 Publishing in a medium that can reach "subscribers" anywhere means a newspaper could be forced to defend itself against lawsuits in venues far beyond those in which it has formerly been subject to jurisdiction.10 Newspapers should act now to minimize their exposure by designing online editions and business plans in a way that explicitly targets the markets in which they expect to do substantial business.
Newspapers became interested in Internet publication in the early 1990s, when the availability of easy-to-use browsers and search engines turned it from a research and technology tool into a mass medium. In 1994, only a handful of U.S. daily newspapers published online editions through commercial electronic dial-up services. A California weekly became the first to publish regularly on the Internet,11 and by 1998 there were more than 800 Internet newspaper editions.12 Editors quickly began exploiting the unique capabilities of the medium, especially continuous updating for breaking news, multimedia content, unlimited volume, and interactivity.13
Of these capabilities, interactivity is the one most likely to confer jurisdiction in a remote venue.14 Newspapers are becoming interactive in several ways.15 In the most basic, online papers make it possible for readers to submit questions, comments, or suggestions to the editor or individual reporters and receive replies at their electronic mail addresses.16 Many papers have taken the next short step to the online sale of print subscriptions.17 Some also offer discussion groups, access to premium services and news and photo libraries, or classified ads that can be answered online.18 Retail display advertisers run eye-catching animated banner ads adjacent to news copy that invite readers to request catalogs, browse the advertiser's own Internet site, or order products online.19 These features are the ones most likely to generate contacts that could confer jurisdiction in remote venues.
Doctrines of Personal Jurisdiction
In determining the types of Internet contact that satisfy due process requirements of specific personal jurisdiction in remote forums, courts are relying on traditional doctrines.21 In International Shoe Co. v. Washington,22 the U.S. Supreme Court held that a defendant's activity within a remote forum can support jurisdiction in actions arising from that activity or contact.23 The contacts must be more than casual or accidental, and contacts caused by the unilateral action of a third party are insufficient.24 Subsequently, in World-Wide Volkswagen Corp. v. Woodson,25 the Court emphasized that a defendant must have fair warning that such activities or contacts expose the defendant to suit in the remote forum.26 Such notice exists if the defendant has "purposefully directed" these activities at the forum.27 For example, in Keeton v. Hustler,28 thousands of magazine subscriptions in the forum state qualified as purposeful.29 In Burger King Corp. v. Rudzewicz,30 a substantial business relationship with a resident of the forum constituted purposeful direction.31 Earlier cases, including World-Wide Volkswagen,32 found the equivalent of purposeful direction where a defendant in the "course of commerce"33 introduced products into a distribution stream that reached purchasers in the forum.34
Even if the Internet were such a distribution stream for information products, the jurisdictional inquiry would not end there.35 In World-Wide Volkswagen,36 the Court held that a forum could properly assert jurisdiction "over a corporation that delivers its products into the stream of commerce with the expectation that they will be purchased by consumers in the forum State."37 Later, however, Asahi Metal Industry Co. v. Superior Court38 cast doubt on this view.39 In a divided opinion, four Justices argued that a passive expectation that the stream of commerce would take a product into the forum, "without more,"40 is not enough to confer jurisdiction.41 This minority view has turned out to be influential and is frequently cited.42
The Asahi43 dictum is grounded in another key admonition of International Shoe,44 that jurisdiction must be reasonable, i.e., that it must not offend "traditional notions of fair play and substantial justice."45 In Asahi,46 the defendant sold tire valve assemblies to a Taiwan manufacturer, which sold finished tires worldwide.47 One of the tires was implicated in the California accident that gave rise to the case.48 The four-Justice plurality insisted it was not fair or just for a forum to assert jurisdiction over a distant defendant that might have foreseen contacts but did not act to cause them.49 The Justices argued there had to be "additional conduct"50 demonstrating an affirmative intent to reach customers in the forum.51 For example, advertising in the forum might qualify as such conduct.52 The Asahi53 plurality asserted that special designs aimed at the forum's residents, a distributor deal that included the forum as a sales territory, or a customer support operation available in the forum, might also qualify.54
Personal Jurisdiction and the Internet
The Asahi55 view of the stream of commerce becomes important as Internet publishing sites enter the picture.56 Courts are rejecting the plaintiff view that the bare accessibility of an Internet site in the preferred forum is grounds for jurisdiction.57 For example, in Bensusan Restaurant v. King,58 the court held that New York's long-arm statute59 did not reach a Missouri night club called The Blue Note60 that maintained a promotional site on the Internet.61 Bensusan, owner of an unrelated business, The Blue Note lounge in New York City,62 argued that the Web site could be read in New York and thus was sufficient contact with the state to confer jurisdiction.63 The trial court disagreed, holding that a passive Web site did not meet the statutory requirement that a tortfeasor must "reasonably expect"64 that his actions would cause injury in any particular jurisdiction.65 The court reasoned that an Internet user in New York would have to take several steps to locate the Missouri Blue Note site.66 The user would actually have to go to Missouri to buy a ticket to the club, because the club's Web site could not be used to order tickets on-line.67 The purposeful conduct would thus be the customer's, not that of the publisher of the Internet site.68
In Cybersell AZ v. Cybersell FL,69 the plaintiff failed to persuade the court that mere availability of online reading material worldwide was evidence that the Web site operator was purposefully reaching out to potential customers in the plaintiff's district.70 The court held that the "essentially passive nature"71 of the defendant's Web site was not purposeful activity sufficient to confer jurisdiction in the plaintiff's forum.72
These courts held that purposeful activity on the Internet must be linked with substantial business transactions with the forum.73 A distribution contract between Internet businesses for an information product would be significant, especially if it resulted in sales to consumers.74 The transactions, not the Web activity per se, confer jurisdiction.
For example, in Zippo Manufacturing Co. v. Zippo Dot Com Inc.,76 a Pennsylvania cigarette lighter company successfully asserted home forum jurisdiction in its trademark infringement action against a California Web news publisher,77 on the strength of the defendant's 3,000 Pennsylvania subscriptions purchased online,78 and its seven contracts with Internet service providers in the state.79
In another oft-cited trademark dispute, Digital Equipment v. Altavista Technology,80 the litigants both operated corporate Internet sites,81 and the California defendant contracted with Massachusetts-based Digital to use the Altavista mark on its site.82 Digital sued over alleged violations by Altavista Technology of the terms of the licensing agreement.83 The Massachusetts court agreed it had jurisdiction,84 but the finding rested on the contract itself and a handful of actual sales to Massachusetts customers.85
So courts have generally held passive Web sites alone insufficient to justify jurisdiction.86 Interactive Web sites accompanied by the signing of contracts and business transactions generally will support jurisdiction.87 Newspaper Internet sites, however, fall somewhere in between.88
Personal Jurisdiction and Newspaper Web Sites
The Zippo court concluded that "the likelihood that personal jurisdiction can be constitutionally exercised over a Web site is directly proportionate to the nature and quality of commercial activity that an entity conducts over the Internet."90 A court assesses this nature and quality by "examining the level of interactivity and commercial nature of the exchange of information that occurs on the Web site."91
This language both asks and begs this question: Does "level"92 mean raw aggregate volume of interactive traffic between the defendant's Web site and the forum, the number of individual users who visit the site even once, or something else? Can "commercial nature"93 mean advertising, or does
the user actually have to buy or sell something?
The case law is unclear. Some judges have held that jurisdiction can rest on very little online contact. In Maritz v. Cybergold,94 the court based jurisdiction on a small number of inquiries from Missouri to the California defendant's Web site.95 Cybergold planned to compile an e-mail address list, sorted by the personal interests of the addressees, and use the list to send paid advertising that recipients would presumably want to see.96 The Cybergold site drew only 131 inquiries from Missouri Internet users, but the court said that was enough to confer jurisdiction.97
In Inset Systems v. Instruction Set,98 the court was so impressed with the twenty-four-hour accessibility of the defendant's Web site that advertised an 800 number detailing how to buy its computer products, that the court took jurisdiction without even asking for any proof of actual Web-driven calls.99 Yet these 1996 opinions, old by Internet standards, run counter to the tendency in more recent cases100 to set a higher threshold for findings of purposeful direction and reasonableness.101
However, this heavier burden on plaintiffs should be no cause for complacency among Web publishers. Even opinions that deny jurisdiction appear to leave plenty of room for a different set of facts that would constitute minimum sufficient online contacts.102 The opinions so far contain no clear statement of precisely what "nature and quality"103 of interactivity amount to sufficient contacts.104 Online publishers have no basis for gauging the numbers of online subscription sales in a remote forum, the volume of purchases of archived photos, or the level of participation in online discussion groups that would constitute purposeful direction.105 Such bright lines have seldom characterized jurisdictional doctrines,106 but their absence in this area adds to the huge uncertainties of the rapidly evolving Internet business climate.
The value of what little guidance is available from more recent opinions is often thrown into doubt by the presence of extraneous factors not related to the Internet.108 For example, in Heroes v. Heroes Foundation,109 the court noted that the defendant's Internet site invited reader interactivity by e-mail,110 but it gave far greater weight on the defendant's printed newspaper advertising in the forum.111 In Scherr v. Abrahams,112 the court denied jurisdiction in a trademark dispute on two grounds.113 First, subscriptions to the defendant's allegedly infringing newsletter were offered online for free,114 and, second, there was nothing on the defendant's Web site aimed specifically at the forum.115 Yet it remains unclear whether some special appeal to the forum would have conferred jurisdiction by itself, or how many paid subscriptions-or even additional unpaid ones-might have changed the court's decision.
Of special interest to newspapers is Blumenthal v. Drudge,116 the defamation suit filed by White House aide Sidney Blumenthal and his wife against the California-based Internet gossip columnist Matt Drudge.117 In denying Drudge's motion to dismiss for lack of personal jurisdiction, the court pointed out that Drudge had collected money for delivery of his column to Washington readers118-even though this totaled only fifteen readers and $250.119 But the court did not need to decide whether subscription payments alone would justify denying the motion, because there were also gossip-gathering and promotional trips by Drudge to Washington,120 as well as e-mails, phone calls, and paper mail contacts with Washington residents.121 Such rulings make it impossible to say categorically that solely online contacts with a forum are sufficient basis for finding jurisdiction there. But they indicate strongly that they could be. In Zippo,122 for example, the court explained that some volume of exchange of business information aimed at producing sales could confer jurisdiction.123 Probably because of the novelty of Internet commerce124 no case has yet forced a court to specify what volume would qualify.125 But with the steep rise in volume of online newspaper publishing,126 the newspaper industry is sure to offer up suitable defendants sooner or later.
Publishers and their counsel can take some comfort from the fact that the courts continue to rely on familiar jurisdictional doctrine in Internet cases.127 Some legal commentators argue that in cyberspace,128 the doctrines of personal jurisdiction are obsolete,129 but that does not appear to be precisely true, at least not yet. Internet users may imagine they are traveling in borderless cyberspace, but in fact they remain physically in front of their computers, where they may inflict or suffer harm much as other defendants and plaintiffs do. Most courts appear not to have been dazzled by the technology; pre-Internet doctrines appear to be serving them well.130 The fact that those doctrines have long avoided basing jurisdiction on inadvertent or casual contact131 should reassure those who worry that the law as it has been applied might stifle business innovation.
On the other hand, Web publishers can expect no Internet holiday from the traditional risk that reaching for new markets could result in being haled into court within them.132 Even though it is not yet possible to quantify the "level of interactivity" that is likely to satisfy a court, enough information is available to keep newspapers out of court in forums where profits don't justify the risk of being sued.
A Jurisdiction Action Plan for Online Publishers
Court decisions on specific jurisdiction tend to turn on the details of each case.133 The doctrines may not be novel in Internet cases, but the facts of Internet commerce, and the law governing them, are new and still evolving.134 Publishers should review their business and operational strategies from the viewpoint of a plaintiff's attorney.
- An Internet site that is vague about its intended audience or, worse yet, refers directly to its global reach, may be inadvertently surrendering the choice of forum to a distant plaintiff.135 Newspapers that are publishers of or partners in Web sites that offer interactive features should consider the following to reduce their chances of an adverse jurisdictional ruling: Develop a marketing strategy that identifies and targets markets where the newspaper and its advertisers can do substantial new business with online editions.
- Compose home pages, advertising, and promotional Web pages that contain specific regional references, making it clear that they are directed toward the target markets.
- In all sections of the online newspaper where readers are invited to subscribe to the paper, to exchange messages with the site, or to make any purchase, require registration with addresses and prohibit or restrict access to anyone outside the targeted markets.
- Advise advertisers and other content providers of the risk and review with them the steps you are taking regarding jurisdiction.
- If the newspaper site is operated jointly with another publisher or has prominent user links with other publisher sites in other communities, reevaluate the site and the strategy for features or content that could be construed as widening the scope of contact with distant readers.
- Finally, be alert for new court decisions that may shed greater light on the determination of Internet publishing interactivity that crosses the jurisdictional line.
Conclusion
Activity purposefully directed toward a forum may confer jurisdiction.136 Although the Internet has not changed this rule, it has changed the level of effort that might direct activity toward a remote forum, purposefully or not. A stroke of a computer key can make one's ideas, intentions, or desires accessible to a global audience.137 The inherent risks can be reduced through publishing tactics like those listed above that reduce contacts outside the intended market and make clear that the online newspaper affirmatively seeks contacts only in the regions it intends to target.
Endnotes
1. See, e.g., EDITOR & PUBLISHER ONLINE (visited Jan. 10, 1999) Media Links (click on "media links" for a global list of regions in which online newspaper links are available).
2. See Kevin Hughes, Entering the World Wide Web: A Guide to Cyberspace(visited Feb. 19, 1999) .
3. See, e.g., Boston.Com (visited Feb. 19, 1999) (showing ability of online news Web sites to present multimedia stories continuously updated).
4. See, e.g., N.Y. TIMES ONLINE QUICKNEWS (visited Feb. 19, 1999) .
5. See Hughes, supra note 2, at the glossary section.
6. See, e.g., USA TODAY ONLINE (visited Jan. 25, 1999) .
7. See Hughes, supra note 2, at the "What Is the World Wide Web" section.
8. See, e.g., N.Y. TIMES ONLINE (visited Jan. 11, 1999).
9. See Karin Mika and Aaron J. Reber, Internet Jurisdictional Issues: Fundamental Fairness in a Virtual World, 30 CREIGHTON L. REV. 1169, 1170 (1997).
10. See id.
11. See Carlson, infral note 14, at the 1990s section.
12. See EDITOR & PUBLISHER ONLINE (visited Jan. 20, 1999) .
13. See, e.g., THE WIRE (visited Feb. 10, 1999) (an Associated Press online news site available through 260 daily newspapers) .
14. See Zippo Mfg. Co. v. Zippo Dot Com, Inc., 952 F. Supp. 1119, 1124 (W.D. Pa. 1997).
15. See, e.g., USA TODAY ONLINE (visited Jan. 22, 1999).
16. See id.
17. See, e.g., N.Y. TIMES ONLINE. (visited Jan. 24, 1999)
18. See, e.g., N.Y. TIMES ONLINE (visited Feb. 15, 1999) .
19. See, e.g., USA TODAY ONLINE (visited Jan. 20, 1999) .
20. See Zippo Mfg. Co. v. Zippo Dot Com, Inc., 952 F. Supp. 1119, 1124 (W.D. Pa. 1997).
21. See, e.g., Hasbro, Inc. v. Clue Computing, Inc., 994 F. Supp. 34, 39 (D. Mass. 1997).
22. 326 U.S. 310 (1945).
23. See id. at 319.
24. See id. at 317.
25. 444 U.S. 286 (1980).
26. See id. at 297.
27. See Keeton v. Hustler Magazine, 465 U.S. 770, 774 (1984).
28. 465 U.S. 770 (1984).
29. See id. at 781.
30. 471 U.S. 462 (1985).
31. See Burger King Corp. v. Rudzewicz, 471 U.S. 462, 480 (1985).
32. World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286 (1980).
33. See Gray v. American Radiator & Standard Sanitary Corp., 176 N.E.2d 761, 764 (1961).
34. See World-Wide Volkswagen, 444 U.S. at 299, citing Gray v. American Radiator & Standard Sanitary Corp., 176 N.E.2d 761 (1961).
35. See Asahi Metal Industry Co. v. Superior Court, 480 U.S. 102, 112 (1987).
36. 444 U.S. 286 (1980).
37. See World-Wide Volkswagen, 444 U.S. at 298-99.
38. 480 U.S. 102 (1987).
39. Id. at 112.
40. See id.
41. See id.
42. See, e.g., Hasbro, Inc. v. Clue Computing, Inc., 994 F. Supp. 34, 41 (D. Mass. 1997) (citing Bensusan Restaurant Corp. v. King, 937 F. Supp. 295 (S.D.N.Y. 1996) citing Asahi Metal Industry, 480 U.S. at 102).
43. Asahi, 480 U.S. at 102.
44. 326 U.S. 310 (1945).
45. See International Shoe, 326 U.S. at 320.
46. Asahi, 480 U.S. at 106.
47. See Asahi, 480 U.S. at 106.
48. See id. at 106.
49. See id. at 113.
50. Id. at 112.
51. See id.
52. See id.
53. Asahi, 480 U.S.
54. See id.
55. Id.
56. See, e.g., Hasbro, Inc. v. Clue Computing, Inc., 994 F. Supp. 34, 41 (D. Mass. 1997) (citing the Asahi plurality's demand for "something more.").
57. See id.
58. 937 F. Supp. 295 (S.D.N.Y. 1996).
59. See N.Y.C.P.L.R. § 302(a)(3) (Consol. 1998).
60. See Bensusan Restaurant v. King, 937 F. Supp. 295 (S.D.N.Y. 1996), aff'd, 126 F.3d 25 (2d Cir. 1997).
61. See Bensusan, 126 F.3d at 27.
62. See id. at 26.
63. See id.
64. Id. at 29.
65. See id. (citing N.Y.C.P.L.R. § 302(a)(3)).
66. See Bensusan Restaurant v. King, 937 F. Supp. 295, 299 (S.D.N.Y. 1996).
67. See id.
68. See id.
69. 130 F.3d 414 (9th Cir. 1997).
70. See Cybersell AZ v. Cybersell FL, 130 F.3d 414, 420 (9th Cir. 1997).
71. Id.
72. See id.
73. See, e.g., Zippo Mfg. Co. v. Zippo Dot Com, Inc., 952 F. Supp. 1119, 1124 (W.D. Pa. 1997).
74. See, e.g., Hasbro, Inc. v. Clue Computing, Inc, 994 F. Supp. 34, 40 (D. Mass. 1997).
75. See id.
76. 952 F. Supp. 1119 (1997).
77. See id.
78. See id. at 1126.
79. See id. (The contracts were for inclusion of Zippo Dot Com news in packages offered to the ISPs' customers).
80. See Digital Equipment v. Altavista Technology, 960 F. Supp. 456 (1997).
81. See id. at 459.
82. See id.
83. See id. at 461.
84. See id. at 472.
85. See id. at 469.
86. See, e.g., Hasbro, Inc. v. Clue Computing, Inc., 994 F. Supp. 34, 41 (D. Mass. 1997).
87. See id. at 40.
88. See, e.g., THE FREEP (visited Feb. 22, 1999) and newslibrary.infi.net/freep/ (Detroit Free Press online edition permitting readers to view news stories and to purchase archived news stories for $1.95 each).
89. Zippo Mfg. Co. v. Zippo Dot Com, Inc., 952 F. Supp. 1119 (W.D. Pa. 1997).
90. Id. at 1124.
91. Id.
92. Id.
93. Id.
94. 947 F. Supp. 1328 (E.D. Mo. 1996).
95. See id. at 1333.
96. See id. at 1330.
97. See id. at 1333.
98. 937 F. Supp. 161 (D. Conn. 1996).
99. See id. at 165.
100. See, e.g., Hasbro, Inc. v. Clue Computing, Inc., 994 F. Supp. 34, 41 (D. Mass 1997).
101. See id.
102. See, e.g., Zippo Mfg. Co. v. Zippo Dot Com, Inc., 952 F. Supp. 1119 (W.D. Pa. 1997).
103. Id. at 1124.
104. See, e.g., Hasbro, 994 F. Supp. at 40.
105. See id.
106. See, e.g., Inset Sys., Inc. v. Instruction Set, Inc., 937 F. Supp. 161, 165 (D. Conn. 1996) (citing Combustion Eng'g, Inc. v. NEI Int'l Combustion, Ltd., 798 F. Supp. 100, 105 (D. Conn. 1992) "[D]ue process inquiry rests upon the totality of the circumstances rather than any mechanical criteria . . . .").
107. See Hasbro, Inc. v. Clue Computing, Inc., 994 F. Supp. 34, 37 (D. Mass 1997).
108. See Hasbro, 994 F. Supp. 34 at 40.
109. 958 F. Supp. 1 (D.C. 1996).
110. See id. at 11.
111. See id. at 3-4.
112. No. 97-C5453, 1998 U.S. Dist. LEXIS 8531 (N.D. Ill. May 29, 1998).
113. See id. at *14-15.
114. See id. at *15.
115. See id.
116. See Blumenthal v. Drudge, 992 F. Supp. 44 (D.C. 1998).
117. See id.
118. See id. at 54.
119. See id. at 57.
120. See id.
121. See id. at 40-41.
122. Zippo Mfg. Co. v. Zippo Dot Com, Inc., 952 F. Supp. 1119 (W.D. Pa. 1997).
123. See id. at 1126; see also Bensusan Restaurant Corp. v. King, 126 F.3d 25, 29 (2d Cir. 1997).
124. See Hasbro, Inc. v. Clue Computing, Inc., 994 F. Supp. 34, 39 (D. Mass. 1997).
125. See Zippo, 952 F. Supp. at 1123. (Development of case law in this area "is in its infant stages").
126. See EDITOR & PUBLISHER ONLINE (visited Jan. 20, 1999) .
127. See Hasbro, 994 F. Supp. at 39.
128. See id.
129. See id.
130. See Zembek at 346.
131. See World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286 (1980).
132. See, e.g., Zippo Mfg. Co. v. Zippo Dot Com, Inc., 952 F. Supp. 1119 (W.D. Pa. 1997).
133. See Hasbro, Inc. v. Clue Computing, Inc., 994 F. Supp. 34, 39 (D. Mass. 1997).
134. See id. at 39, citing Zippo, 952 F. Supp. at 1123 ("With this global revolution looming on the horizon, the development of the law concerning the permissible scope of personal jurisdiction based on Internet use is in its infant stages").
135. See, e.g., American Network, Inc. v. Access America/Connect Atlanta, Inc., 975 F. Supp. 494 (S.D.N.Y. 1997) (upholding jurisdiction in New York over a Georgia defendant and referring five times to the defendant Web site's explicit references to its ability to do business "across the U.S.").
136. See Keeton v. Hustler Magazine, 465 U.S. 770, 781 (1984).
37. See, e.g., J. Christopher Gooch, Note, The Internet, Personal Jurisdiction, and the Federal Long-Arm Statute: Rethinking the Concept of Jurisdiction, 15 ARIZ. J. INT'L & COMP. LAW 635, 641 (1998).
David H. Tomlin is assistant to the president of the Associated Press and a third-year law student at New York Law School.
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