"Highly Interactive" Online Discussion Equated with Business Activity May Subject Website Operator to Personal Jurisdiction in Plaintiff’s Forum State

On January 21,2011, the U.S. District Court for the Eastern District of Kentucky ruled  that an interactive website operated from Arizona subjected itself to a Kentucky court’s personal jurisdiction by intentionally reaching beyond its home state’s boundaries and engaging in business and dialogue with residents in other states (Jones v. Dirty World Entertainment Recordings LLC , E.D. Ky., 2:09-cv-00219-WOB (E.D. Ky. 2011).  Specifically,the court held that by encouraging a discussion among its readers, and by adding their own comments to the discussion, the operators of the website engaged in conduct that appropriately subjected them to the Kentucky court’s personal jurisdiction.  The court declined to dismiss the complaint based on a claim of immunity under Section 230 of the Communications Decency Act.

The plaintiff, a member of the Cincinnati Bengals’ cheerleading squad, sued the defendant, Dirty World Entertainment, for defamation and libel after derogatory remarks were posted about her on the website “thedirty.com.”  The plaintiff had requested that the posts be removed from the site – they were not.  Additionally, defendant Nik Richie, who operates the site, responded to one of the posts about the plaintiff on the site.  The court stated that in Internet cases, personal jurisdiction exists where: 1) the non-resident has directed its activities at the forum state; 2) the claim arises out of the defendant’s activities in the forum state; and 3) the exercise of jurisdiction is reasonable.

In Neogen Corp. v. Neo Gen Screening Inc., 282 F.3d 883 (6th. Cir. 2002), the Sixth Circuit adopted the Zippo test for determining which websites should be subject to a forum state’s personal jurisdiction.  In Zippo Mfg. Co. v. Zippo Dot. Com. Inc., 952 F. Supp. 1119 (W.D. Pa. 1997), a federal trail court in Pennsylvania created what has become the benchmark for analyzing whether personal jurisdiction can exercised over non-resident websites.  Under Zippo, “highly-interactive” websites are deemed to be doing business in, and thus have minimum contacts with, a foreign jurisdiction.  Accordingly, exercising personal jurisdiction over a highly-interactive website is reasonable.

Here the court said that the website “thedirty.com” was a highly interactive site.  The court noted that ‘[t]he defendants publish invidious and salacious posts by visits or the website, … they respond to the posts with their own comments, and they thereby encourage and generate further posts by the readers.”  By encouraging this dialogue, the court said that the defendants were inviting traffic from the region where the subject of the posts resided.  Thus, the court said that the website “intentionally reaches beyond the boundaries of its home state to conduct business and interact with residents of other states.”

The defendant argued that it did not intend to cause consequence in Kentucky because the posts referencing the plaintiff only made note of her work in Cincinnati.  As a result, the defendants said that only a forum in Ohio could exercise personal jurisdiction over them.  The court disagreed, noting that although the defendant lives in Kentucky, the plaintiff is just across the Ohio river from Cincinnati.  The court stated that an analysis of subject matter jurisdiction may turn on what state the plaintiff resides in, but personal jurisdiction focuses on whether the defendant would be deprived of due process by being haled to a distant forum.

Here, the defendant should have known that the plaintiff resided somewhere in the greater Cincinnati area.  Northern Kentucky is included in that area and therefore the defendants are not deprived of due process by being subjected to the court’s personal jurisdiction, according to the court.

The court further stated that the exercise of personal jurisdiction was also appropriate because of the “effects test.” The effects test—first recognized by the Supreme Court in the companion cases Calder v. Jones, 465 U.S. 783 (1983) and Keeton v. Hustler Magazine Inc., 465 U.S. 770 (1984)—is satisfied where: 1) a nonresident commits an intentional act; 2) expressly aimed at the forum state; 3) causing harm that it knows is likely to be suffered there.  The court said that here the defendants knew that the statements posted online were likely to harm the plaintiff in the greater Cincinnati area where she lived and worked.

The defendant attempted to argue that its postings were privileged  and immune under the CDA (47 U.S.C. § 230 (c)).  The CDA provides that “[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”  According to the court, it was premature to consider a CDA defense pursuant to the personal jurisdiction issue which was before it.  Additionally, the court referenced Fair Housing Council of San Fernando Valley v. Roomates.com LLC, 521 F. 3d 1157 (9th Cir. 2008)(13 ECLR 489, 4/9/08), for the proposition that CDA immunity is not absolute.  Indeed, the court said that CDA immunity “may be forfeited if the site owner invites the posting of illegal materials or makes actionable postings itself.” The court said that discovery would be needed to determine if the defendants qualified for CDA immunity.

Richard Newman, Internet Lawyer and Business Litigation Attorney – Hinch Newman LLP