Your friendly neighborhood technology counsel here: A couple of recent state court decisions are going to start personal injury attorneys frothing at the mouth, and might render some sleepless nights for defense attorneys. Both Ohio and Florida recently issued opinions in which they applied their state's respective long-arm statutes to garner personal jurisdiction over an out-of-state resident for tortious conduct that transpired over the Internet.
First, you need to know what a long-arm statute is. Essentially, it is a mechanism by which a state can obtain jurisdiction over an out-of-state resident for activities or actions undertaken that are related to an in-state resident or citizen. Without boring you with the legal details, they stem from the concepts of full faith and credit and due process and require a minimum amount of contact within the state to trigger. And, they have posed a pickle in Internet litigation because the Web allows access from out-of-state residents without actual presence or contact. At least that was the case until recently.
In Internet Solutions Corporation v. Marshall, the Florida Supreme Court, addressing a certified question from the Eleventh Circuit, determined that exercising jurisdiction over an out-of-state resident under Florida's long-arm statute did not violate due process. The basic facts are that Marshall ran a website based out of Washington, where she is a resident. She had no contact with Florida other than a short business related trip several years ago. However, she wrote a blog about a Florida based company and then she and some other posters trashed them online in the comment section. The Florida-based company sued for defamation in federal court under a diversity action (action between two citizens of different states). The district court found no personal jurisdiction and the Eleventh Circuit certified the question to the Florida Supreme Court. The Florida Supreme Court looked at two main analysis points: (1) whether the complaint alleged sufficient jurisdictional facts to being the action within the ambit of the statute, and (2) whether sufficient minimum contacts are demonstrated to satisfy due process requirements. The Court determined that both were satisfied. An interesting analysis point is that the Court reasoned that the long-arm statute had been applied to telephonic, electronic or written communications in the past and that the Internet is an extension of those rulings. Overall, it is a well-reasoned opinion applying a standard long-arm statute to the Internet.
Similarly, in Kauffman Racing Equipment, LLC v. Roberts, the Ohio Court of Appeals reached a similar conclusion when determining if an out-of-state residents comments over an Internet blog about an in-state plaintiff can be grounds for jurisdiction over the out-of-state resident in a defamation action. The Court utilized the same general analysis as in Marshall.
The obvious implications to Internet litigation of these opinions are pretty substantial. Until now, suing for tortious actions done over the Internet has been difficult because of those pesky due process minimum contacts, but that is slowly changing. These cases are a framework for an enterprising personal injury lawyer to sue someone that has never set foot in their state for tortious activities on the Web. And, right now we are only talking about defamation, but why wouldn't it extend to other torts. What about tortious interference with a business relationship, intentional infliction of emotion distress, and assault, to name a few. This is going to change the face of Internet litigation. We are going to see more lawsuits based on this. And, further, you, as a business owner, will need to be aware of what you are putting out on the cyberspace. You may be inadvertently exposing yourself.
And think of the other areas of technology litigation that this can be tied into. Two of the most predominant to me are privacy litigation and cloud computing law. Imagine that I have posted private information about you on the Internet in contravention to the law. We've never met and I've never been in your state, but the Internet has. Under these holdings, I can be hauled into the courtroom to address my actions. Or I've placed something into the cloud that doesn't belong. I've now exposed myself to multiple jurisdictions depending on to whom I have shown the material.
The ramifications are mind-numbing, but we'll see what other states start jumping on board. As I've always said, technology litigation and Internet litigation is in its infancy and we are going to see wide-spread changes from court's making decisions at the federal and state court level. It should be fun.
First, you need to know what a long-arm statute is. Essentially, it is a mechanism by which a state can obtain jurisdiction over an out-of-state resident for activities or actions undertaken that are related to an in-state resident or citizen. Without boring you with the legal details, they stem from the concepts of full faith and credit and due process and require a minimum amount of contact within the state to trigger. And, they have posed a pickle in Internet litigation because the Web allows access from out-of-state residents without actual presence or contact. At least that was the case until recently.
In Internet Solutions Corporation v. Marshall, the Florida Supreme Court, addressing a certified question from the Eleventh Circuit, determined that exercising jurisdiction over an out-of-state resident under Florida's long-arm statute did not violate due process. The basic facts are that Marshall ran a website based out of Washington, where she is a resident. She had no contact with Florida other than a short business related trip several years ago. However, she wrote a blog about a Florida based company and then she and some other posters trashed them online in the comment section. The Florida-based company sued for defamation in federal court under a diversity action (action between two citizens of different states). The district court found no personal jurisdiction and the Eleventh Circuit certified the question to the Florida Supreme Court. The Florida Supreme Court looked at two main analysis points: (1) whether the complaint alleged sufficient jurisdictional facts to being the action within the ambit of the statute, and (2) whether sufficient minimum contacts are demonstrated to satisfy due process requirements. The Court determined that both were satisfied. An interesting analysis point is that the Court reasoned that the long-arm statute had been applied to telephonic, electronic or written communications in the past and that the Internet is an extension of those rulings. Overall, it is a well-reasoned opinion applying a standard long-arm statute to the Internet.
Similarly, in Kauffman Racing Equipment, LLC v. Roberts, the Ohio Court of Appeals reached a similar conclusion when determining if an out-of-state residents comments over an Internet blog about an in-state plaintiff can be grounds for jurisdiction over the out-of-state resident in a defamation action. The Court utilized the same general analysis as in Marshall.
The obvious implications to Internet litigation of these opinions are pretty substantial. Until now, suing for tortious actions done over the Internet has been difficult because of those pesky due process minimum contacts, but that is slowly changing. These cases are a framework for an enterprising personal injury lawyer to sue someone that has never set foot in their state for tortious activities on the Web. And, right now we are only talking about defamation, but why wouldn't it extend to other torts. What about tortious interference with a business relationship, intentional infliction of emotion distress, and assault, to name a few. This is going to change the face of Internet litigation. We are going to see more lawsuits based on this. And, further, you, as a business owner, will need to be aware of what you are putting out on the cyberspace. You may be inadvertently exposing yourself.
And think of the other areas of technology litigation that this can be tied into. Two of the most predominant to me are privacy litigation and cloud computing law. Imagine that I have posted private information about you on the Internet in contravention to the law. We've never met and I've never been in your state, but the Internet has. Under these holdings, I can be hauled into the courtroom to address my actions. Or I've placed something into the cloud that doesn't belong. I've now exposed myself to multiple jurisdictions depending on to whom I have shown the material.
The ramifications are mind-numbing, but we'll see what other states start jumping on board. As I've always said, technology litigation and Internet litigation is in its infancy and we are going to see wide-spread changes from court's making decisions at the federal and state court level. It should be fun.
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