April 200228The Internet has evolved over the past few decades into acomplex medium that enables its users to disseminate infor-mation quickly and inexpensively to half a billion individualsworldwide. These communications are routed throughout theUnited States and abroad, notwithstanding their origin and desti-nation. Two decades ago, there were less than 300 computerslinked to the Internet.1By the year 2000, there were estimated tobe 175 million people accessing the Internet.2It is now esti-mated that half a billion people worldwide have access to theInternet from their homes, and that number will swell to 600million by the end of the year.3Also, by the end of 2002,Internet users are expected to spend more than $1 trillion in on-line commerce.4In short, every Virginia lawyer probably has a client whoaccesses the Internet to post or receive information and/or tobuy or sell goods or services. These clients, because of theglobal nature of the Web, may become involved in disputes thatstretch across the United States, if not the world.Indeed, the Internet explosion has generated many jurisdictionaldisputes, putting the onus on courts to determine how to applyhistoric concepts regarding personal jurisdiction to the boundary-less world of the Internet. The courts’ latest, and now most com-mon approach has been to apply basic personal jurisdictionanalysis to Internet activities on a “sliding scale” analysis of theinteractivity of the site. Virginia courts, too, have integrated thissliding scale analysis in their review of Internet-related jurisdic-tion. Many of these same courts, however, have not diminishedtheir focus on the perceived harm to the plaintiff or what isknown as the “effects doctrine.” Indeed, application of the slid-ing scale analysis itself has been inconsistent from court to court,leaving potential plaintiffs with no certainty that their case willbe heard in their local forum. Additionally, potential defendantsare unable to judge their risk of being haled into a foreign court.General Bases For JurisdictionThe basic premise of personal jurisdiction analysis utilizes a two-part review under the state’s long-arm statute and the Due ProcessClause of the Fourteenth Amendment to the United StatesConstitution. In many states, including Virginia, this analysis issimplified by the courts’ interpreting the long-arm statute5to besatisfied whenever the constitutional requirements are met.6Briefly stated, the Due Process Clause requires that no defendantbe haled into court unless he has “certain minimum contacts”with the forum state “such that the maintenance of the suit doesnot offend ‘traditional notions of fair play and substantial jus-tice’.”7The defendant must have “purposely avail[ed] itself of theprivilege of conducting activities within the forum State, thusinvoking the benefits and protections of its laws.”8Also, theF EATURES | LITIGATIONCyber-jurisdictionby Ellen S. MooreVirginia Lawyer 29exercise of jurisdiction must be “fair and reasonable” under thecircumstances of the case and the “defendant’s conduct and con-nection with the forum State [must be] such that he should rea-sonably anticipate being haled into court there.”9Personal jurisdiction further may be founded on either of twotheories, general or specific jurisdiction. A court exercises generaljurisdiction when an action “does not arise out of the defendant’sactivities in the forum state, . . . [but] the requisite ‘minimumcontacts’ between the defendant and the forum state are ‘fairlyextensive.’”10In such a case, the defendant’s contacts must be “continuous and systematic.”11A court may exercise specific juris-diction when the suit arises out of the defendant’s activities inthe forum state.12When exercising specific jurisdiction over thedefendant, the courts need not find extensive contacts betweenthe defendant and the forum state, but the “fair warning”requirement of the Due Process Clause requires that the defen-dant have “purposely directed” its activities at the forum.13Judicial Analysis of Cyber-jurisdictionThe Internet has not altered the courts’ use of traditional jurisdic-tional concepts; instead, it merely has added a new factor in theanalysis of such contacts. Some courts, especially the earlyreviewers of these issues, compared the Internet with more rec-ognized forms of communication and commerce. For example,courts have analogized the use of electronic mail to that of theregular postal service, or Internet advertising to that of advertis-ing a product via paper communications and thereby insertingthat product into the stream of commerce. This analysis oftenfalls short, however, in considering the potential interactivityallowed by the Internet and the fact that the Internet reaches amuch broader and more geographically diverse audience thando most paper-based advertisements or publications. Manycourts, therefore, have adopted a sliding scale or continuum ofcharacteristics of Internet presence and interactivity to assist inresolving the question of just when and how much Internetpresence is enough for jurisdiction in a given forum.As set forth in the seminal case of Zippo Mfg. Co. v. Zippo DotCom, Inc.,14three general categories of Internet presence haveemerged, creating three general lines of case law addressing per-sonal jurisdiction issues. The first category includes passive Websites that merely present information without accepting informa-tion from the viewer, taking orders, or selling or offering servicesor products. Generally, no jurisdiction is found with passivesites. The second category concerns Web sites with both passiveand active characteristics—those that allow for the exchange ofsome information between the site and the viewer. Here thecourt will analyze the level of interactivity with the customer oruser in that state to determine jurisdiction. The third categoryincludes those Web sites where the provider actively conductsbusiness over the Internet by allowing the user to enter intocontracts or purchase products advertised on the site. Jurisdictionis generally found where the Web site is highly interactive.Jurisdictional determinations, however, are very fact-dependent,and courts have not hesitated to mold the sliding scale analysisor utilize different jurisdictional analyses. What some courtsinterpret to be a purely passive Web site, other courts hold to beat least partly active—resulting in very different
View Full Document
Unlocking...