'Effects Test' for Jurisdiction Gets Another Nod

A number of state courts are applying the 'effects test,' derived from the U.S. Supreme Court's decision in Calder v. Jones, 465 U.S. 783, 804 S. Ct. 1482 (1984), which examines whether the Internet activity was targeted to the forum state. In Calder, a California resident sued a Florida-based author of a National Enquirer article, as well as the magazine, for libel. The high court said the exercise of jurisdiction was proper because of the foreseeable 'effects' in California of the nonresident defendants' activities. The alleged harm and injury to reputation would occur in California.

In the North Dakota case, Glenda Miskin was a student at the University of North Dakota, where Professor John Wagner taught physics.

In April 1999, a university committee expelled Miskin for allegedly using the school's e-mail system to send Wagner harassing and sexually explicit messages. Wagner followed with a lawsuit against the former student, alleging that slanderous statements posted on her Web site had interfered with his business relationships. A jury awarded him $3 million and a district court upheld the verdict.

Jurisdiction Established

Miskin, now a Minnesota resident, appealed to the state's high court, asserting that the lower North Dakota court 'lacked jurisdiction over the Internet.' The court disagreed. Articles about Wagner and the on-going litigation were the primary topics of Miskin's Web site. It contained links to news about the university and its staff. Those factors were sufficient for the court to conclude that Miskin had 'directly targeted North Dakota with her Web site, specifically North Dakota resident John Wagner.'

Wagner and Miskin both acted pro se in the appeals. Wagner had a lawyer, William Elliott McKechnie of Grand Forks, ND, during the trial. The Internet was just a tool, McKechnie said, and he never saw it as an impediment to bringing a libel case against Miskin.

'Every aspect of Internet jurisdiction is still unsettled,' says Raymond Ku, who teaches Internet law at Seton Hall University. 'But we're starting to see a trend toward coming up with a single rule.'

Ku said most states are moving toward the 'effects test,' or a similar principle of traditional jurisdiction law called 'purposeful availment.'

'Calder is being cited a lot right now,' says Daniel West, co-chairman of the e-business group at Fredrikson & Byron in Minneapolis, who has written about Internet jurisdiction. Most courts are taking a narrow reading of the law, he says.

If they didn't, posting something on a Web site could potentially invite a flood of litigation from anywhere, he asserts.

States including Iowa, Minnesota and Virginia have each decided cases that denied jurisdiction over the Internet, says West, and the U.S. Supreme Court denied certiorari in the Minnesota case.

Generally, the courts' tests seem to be whether the Web site content is directed toward a national or state-specific audience.

In the Virginia case brought by the Rev. Jerry Falwell, a local federal court said that it lacked jurisdiction to hear a lawsuit against an Illinois-based Web operator who, Falwell alleged, had defamed him. The Virginia court said the Web site was directed toward a national audience, and had not expressly targeted Virginia residents. Falwell v. Cohn, No. CV 6:02CV00040 (W.D. Va.).

Dee McAree is a reporter for The National Law Journal.

In its first case on Internet jurisdiction, the North Dakota Supreme Court has affirmed a $3 million libel award to a university professor who was defamed on a student's Web site.

The ruling is the latest in an area of law ' Internet jurisdiction ' that judges are grappling with across the country. Wagner v. Miskin, No. 20020200.

A key issue in the North Dakota case, and many cases involving Internet jurisdiction, is whether courts can stretch the long arm of the law to nonresident defendants whose alleged crimes are committed on the Internet.

A number of state courts are applying the 'effects test,' derived from the U.S. Supreme Court's decision in Calder v. Jones , 465 U.S. 783, 804 S. Ct. 1482 (1984), which examines whether the Internet activity was targeted to the forum state. In Calder, a California resident sued a Florida-based author of a National Enquirer article, as well as the magazine, for libel. The high court said the exercise of jurisdiction was proper because of the foreseeable 'effects' in California of the nonresident defendants' activities. The alleged harm and injury to reputation would occur in California.

In the North Dakota case, Glenda Miskin was a student at the University of North Dakota, where Professor John Wagner taught physics.

In April 1999, a university committee expelled Miskin for allegedly using the school's e-mail system to send Wagner harassing and sexually explicit messages. Wagner followed with a lawsuit against the former student, alleging that slanderous statements posted on her Web site had interfered with his business relationships. A jury awarded him $3 million and a district court upheld the verdict.

Jurisdiction Established

Miskin, now a Minnesota resident, appealed to the state's high court, asserting that the lower North Dakota court 'lacked jurisdiction over the Internet.' The court disagreed. Articles about Wagner and the on-going litigation were the primary topics of Miskin's Web site. It contained links to news about the university and its staff. Those factors were sufficient for the court to conclude that Miskin had 'directly targeted North Dakota with her Web site, specifically North Dakota resident John Wagner.'

Wagner and Miskin both acted pro se in the appeals. Wagner had a lawyer, William Elliott McKechnie of Grand Forks, ND, during the trial. The Internet was just a tool, McKechnie said, and he never saw it as an impediment to bringing a libel case against Miskin.

'Every aspect of Internet jurisdiction is still unsettled,' says Raymond Ku, who teaches Internet law at Seton Hall University. 'But we're starting to see a trend toward coming up with a single rule.'

Ku said most states are moving toward the 'effects test,' or a similar principle of traditional jurisdiction law called 'purposeful availment.'

'Calder is being cited a lot right now,' says Daniel West, co-chairman of the e-business group at Fredrikson & Byron in Minneapolis, who has written about Internet jurisdiction. Most courts are taking a narrow reading of the law, he says.

If they didn't, posting something on a Web site could potentially invite a flood of litigation from anywhere, he asserts.

States including Iowa, Minnesota and Virginia have each decided cases that denied jurisdiction over the Internet, says West, and the U.S. Supreme Court denied certiorari in the Minnesota case.

Generally, the courts' tests seem to be whether the Web site content is directed toward a national or state-specific audience.

In the Virginia case brought by the Rev. Jerry Falwell, a local federal court said that it lacked jurisdiction to hear a lawsuit against an Illinois-based Web operator who, Falwell alleged, had defamed him. The Virginia court said the Web site was directed toward a national audience, and had not expressly targeted Virginia residents. Falwell v. Cohn, No. CV 6:02CV00040 (W.D. Va.).

Dee McAree is a reporter for The National Law Journal.