What Jurisdiction Controls?

Will on-line publishers find themselves subject to jurisdiction throughout the nation (or the world)? When on-line communications routinely cross state and national borders, whose law will apply?

General Legal Standards for Asserting Jurisdiction

Under the U.S. Constitution, a court cannot assert jurisdiction over a potential defendant unless the defendant has sufficient "minimum contacts" with the forum so as to satisfy traditional notions of fair play and substantial justice. International Shoe Co. v. Washington, 326 U.S. 310 (1945). Minimum contacts can consist of either some type of systematic and continuous contact with the forum ("general jurisdiction"), or isolated or occasional contacts purposefully directed toward the forum ("specific jurisdiction"). Helicopteros Nacionales de Columbia, S.A. v. Hall, 466 U.S. 408 (1984).

The principal test, for due process purposes, is whether or not the defendant, by its actions, could have reasonably anticipated the possibility of defending a suit in the forum. World-Wide Volkswagen v. Woodson, 444 U.S. 286 (1980). In cases in which the litigants are from foreign countries, a court must also consider the policies of the foreign countries, as well as U.S. foreign policy, in determining whether exercising jurisdiction would be fair. Asahi Metal Ind. Co. v. Superior Court, 480 U.S. 102 (1987).

It is still too early to determine definitively how most courts will assess jurisdictional questions in the context of entities which have no "real" physical location, but only a "virtual" location on-line. In Calder v. Jones, 465 U.S. 783 (1984), the Supreme Court held that the minimum contacts test could be satisfied by speech directed toward the forum, if the speech has sufficient impact within the forum. A similar result was reached in a Canadian case, Pindling v. National Broadcasting Corp., 49 O.R.2d 58 (1984), in which an Ontario court exercised jurisdiction over an American broadcaster whose allegedly libelous broadcasts from the U.S. were received in Canada. These cases may prove to be very important for providing a jurisdictional framework for lawsuits involving on-line communications.

LINKS:

Cases Finding Jurisdiction on the Basis of Internet Contacts

Cases Which Hold that Internet Contacts are Insufficient to Convey Jurisdiction

Cyberspace in Other Jurisdictions