Having a Facebook or Twitter Account Shouldn’t Mean Mandatory California Vacations if You Get Sued (Forbes Cross-Post)
By Eric Goldman
[Given how I feel about blogging on civil procedure topics, it's ironic that my first substantive post to Tertium Quid is about Internet jurisdiction of all things. Still, this was an easy rehash of some recent blog posts that I could synthesize for a broader audience. I promise you that I will not be blogging on civil procedure topics at Tertium Quid very often, and that the rest of July's upcoming posts should be on more interesting topics!
BTW, If you didn't see, after I initially posted it, I did supplement my post on Judge Corley's DFSB ruling with cites to more cases supporting her view that Twitter/Facebook accounts alone don't produce California jurisdiction. See FN1 to that post.]
Two California judges recently disagreed on whether a plaintiff can sue you in California simply because you have a Facebook or Twitter account. Fortunately, the more recent ruling reached the logical conclusion that you shouldn’t have to take a mandatory California vacation just because you tweet.
Questions about personal jurisdiction on the Internet—that is, when a court has the right to handle a lawsuit against the defendant—are among the most venerable (and most frequently litigated) issues in Internet law. The earliest such case I know of dates back to 1986, about a decade before the Internet became widely available. The seminal Internet jurisdiction case, Zippo v. Zippo dot com from 1997, has been cited in nearly a thousand other legal opinions.
Despite the volume of legal rulings on the topic, the rules of Internet jurisdiction remain quite unpredictable. It’s often unclear when our online activities expose us to being sued in courts clear across the country.
Social Media and Jurisdiction
That includes the simple act of using a social media account at sites like Facebook or Twitter. Not surprisingly, many social networking websites are headquartered in California (usually the Silicon Valley or San Francisco). You already know (if you read the terms of service…you did that, right?) that any lawsuit involving Facebook and Twitter will have to be in their home court in California, but if someone else sues you in California, will you have to cash in your frequent flier miles to defend yourself there?
That proposition may sound preposterous, but at least one district court has said yes. In December, a federal judge in the Northern District of California upheld personal jurisdiction over an Australian defendant in part because he “uses California companies Facebook, Twitter, and YouTube to promote the websites he operates.” My blog post on that ruling.
Fortunately, recently a different federal judge in the same district reached a different conclusion. My blog post on the case. The judge wisely said:
this Court disagrees that using the Internet accounts of companies based in California is sufficient to support a finding that a defendant expressly aimed his conduct at California. To adopt Plaintiffs’ reasoning would render the “expressly aimed” prong of the Calder test essentially meaningless as it has become ubiquitous for businesses—large and small—to maintain Facebook or Twitter accounts for marketing purposes and would subject millions of persons around the globe to personal jurisdiction in California.
A few other cases addressing this issue have reached this latter conclusion as well. Ideally, this means you should be free to continue enjoying Facebook or Twitter without stressing about defending lawsuits in California courts.
Jurisdiction in a Cloud Computing Era
As a practical matter, most Internet users have no idea where the websites we use are physically “located”—and more importantly, we don’t care. So long as we can access the website over the web, the website’s physical location usually is completely immaterial to our enjoyment of the website; and web users rarely choose websites based on where those sites are physically located. In the era of “cloud computing,” any legal rule that depended on the physical location of the websites we use would be illogical. Let’s hope courts keep reaching the right conclusion on that point.