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Courts have not reached a settled jurisprudence about how to analyze cross-border torts that occur over the internet, although they are trending in a positive direction. One of the most common torts affecting businesses and professionals with an internet presence is defamation. But assuming that a person is defamed, where did the tort occur if the defamation arises out of information posted on an internet website? Does the tort occur in the state where the actual drafting and posting of the defamatory information occurred? Does the tort occur in the state where the defamed person or business is located? Or does it occur in any state where the website may be accessed?
As discussed earlier on this blog, one state supreme court has recently decided that when defamation occurs over the internet, the tortious act occurs in the state where the defamed individual is located. The Eighth Circuit Court of Appeals has just weighed in against such a conclusion. In Johnson v. Arden, a Missouri plaintiff complained about an allegedly defamatory statement made on an internet discussion board by out-of-state defendants. To determine whether it had specific personal jurisdiction over the defendants, the court applied the Zippo test first annunciated in Zippo Mfg. Co. v. Zippo Dot Com, Inc., 952 F. Supp. 1119, 1124 (W.D. Pa. 1997). The test involves a "sliding scale", running from active contract formation and repeated transmission of computer files to mere posting of information on a website, as a means of measuring the liklihood of personal jurisdiction. The Eighth Circuit concluded that if a website serves only to make information available to other people and there is no interaction between users and a host computer, the website's accessibility in the forum state is insufficient to conver personal jurisdiction over out-of-state defendants who operate the website.
Furthermore, the court concluded that even though the information posted on the website discussed a Missouri business, there was no evidence that the content of the posting specifically targeted Missouri. This part of the court's analysis seems incorrect, or at least very weak. The court explains that the defendant who posted the allegedly defamatory statement did not uniquely or expressly aim her statements at Missouri; rather, the statements were aimed at the plaintiff, who is a Missouri resident. Thus, according to the court, since the website targeted an individual residing in Missouri, and not Missouri itself, there is no personal jurisdiction. However, this portion of the court's reasoning is ultimately inconsequential to the decision, because the court hold that absent additional contacts, mere effects in the forum state are insufficient to confer personal jurisdiction.
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