Perspective: Even in Net litigation, it's all about location

The Web site DontDateHimGirl.com allows women to make anonymous postings about specific men.

So it was that a defamation lawsuit got filed with respect to statements made on the site about one particular man. But the case was just dismissed for failure of personal jurisdiction, offering a signal lesson in why the details of the law matter. Let's take a closer look at the facts of the case.

On May 24, 2006, a profile of the plaintiff appeared on the DontDateHimGirl site. Additional postings about the man appeared later. In a lawsuit filed in state court in Pennsylvania, the plaintiff claimed that the profiles were false and misrepresented him as being a herpes-ridden gay or bisexual who had transmitted a sexually transmitted disease and had sired different children.

The court determined that whether the use of an Internet Web site permits it to exercise jurisdiction over an out-of-state company under Pennsylvania's Long-Arm Act required the court to look to a "sliding scale" of contacts. Namely, the more contacts by the defendants with the state of Pennsylvania, the more likely it is appropriate for the court to decide that it has personal jurisdiction over the defendants.

The court then embarked on an analysis of those contacts in this case. The court first noted that the server for the DontDateHimGirl.com site is located in Florida, not Pennsylvania, and that all Web site operations take place in Florida. The court also concluded that the site does not specifically solicit residents of Pennsylvania to post profiles on the site. However, the defendants apparently are aware that Pennsylvania residents will post profiles on the site.

The court concluded that the defendants do not perform a "significant amount of commercial business over the Internet" as directly impacting Pennsylvania sufficient to warrant personal jurisdiction over the defendants in the state.

The court also found that while DontDateHimGirl.com maintains an online store on its server where users can purchase clothing and accessory items, the store has made sales to only six Pennsylvania residents, for less than five percent of the total sales of the store.

Next, the court noted that DontDateHimGirl.com obtains revenue through advertising, with the primary source being the Google AdSense program. Pursuant to this program, advertisers enter into contracts with Google to place their advertisements. Google places advertisements on numerous Web sites, including DontDateHimGirl.com, by way of contracts with the site operators.

Google makes the selection as to which sites it will run advertisements. However, advertisers may generally describe the types of sites where the advertisements preferably should be placed. Google pays site operators in this instance based on "clicks" on the link taking the viewer from the Web site of DontDateHimGirl.com to the site of the advertiser. Google cannot determine the amount of money paid on profiles of people identified with Pennsylvania.

After analyzing the foregoing facts, the court concluded that the defendants do not perform a "significant amount of commercial business over the Internet" as directly impacting Pennsylvania sufficient to warrant personal jurisdiction over the defendants in the state. Indeed, the court viewed the defendants' activities as no more than "general advertising with the added convenience of an online registry."

The court recognized that the DontDateHimGirl.com Web site, like other sites, is accessible to anyone connected to the Internet anywhere in the world. The court rejected the notion that a defendant can be hauled into court in any state for any controversy, regardless of contacts with that particular state. This would violate principles of due process, according to the court.

This reasoning makes abundant sense. It also should provide comfort to companies and individuals. They only need answer to legal allegations in states where they have sufficiently substantial contacts to justify further legal proceedings.

Biography
Eric J. Sinrod is a partner in the San Francisco office of Duane Morris. His focus includes information technology and intellectual-property disputes. To receive his weekly columns, send an e-mail to [e-mail] with "Subscribe" in the subject line. This column is prepared and published for informational purposes only, and it should not be construed as legal advice. The views expressed in this column are those of the author and do not necessarily reflect the views of the author's law firm or its individual partners.

More Perspectives

[ajhoughton]

if only common sense were universal

It's a shame that the judge who made this eminently sensible
decision wasn't the one presiding over the farcical lawsuit that
was filed against Spamhaus:

http://www.spamhaus.org/organization/statement.lasso?ref=3

Judge Charles P. Kocoras appears to feel that the entire world is
his jurisdiction (contrary to United States Law, I might add), and
accordingly is quite happy to make rulings against an entity that
exists not in the United States but in the United Kingdom.

[arluthier]

Confused.

When I started reading the article, I assume he was claiming the posters of the defamatory statements as the defendants. So I was a bit confused on why all the investigation into the commercial status of the website operators.

WHY would this moron be filing suit against the website operators for comments that were posted that he found as incorrect? To me that would be along the lines of sueing a paper company for providing the paper that someone wrote a hateful letter on.

If he was a smart man (which may explain the problems the women have with him) he would have focused on the people that were ACTUALLY defaming him.

[Penguinisto]

One possibility...

Perhaps he asked them to retract/delete the entry (or divulge any ID info on the poster), and they refused?

IMHO, sites like that walk a very thin line anyway.

One would hope that the site owners are/were smart enough to provide some sort of "his side of the story" thing with each profile, where the poor schmuck being targeted could at least post his side of the story (if for no other reason than to call the original poster a liar).

/P

[michaelo1966]

Bad decision

This was a bad decision. The website operator was clearly soliciting customers in the plaintiffs state. In fact, the overwhelming purpose of their business -- public disclosure to potential dating partners -- would only be applicable to women living close to the plaintiff who would also likely live in his state.

The name of this website suggests that it's a libel-mill serving no particularly positive purpose. They seem to have gotten out of this one on a technicality but somebody will eventually shut down this sewer, or at least bankrupt the operators.

[brianpaige]

Well...

Not quite as bad as that. The website operator was soliciting people in PA about as much as they solicited anywhere else in the world. Given that anyone with a web connection and the gumption to look up the site could get connected to it, there is no specific evidence of solicitation for PA residents.(yes, I said gumption, get over it ya whipper-snapper). It's not like MLB.com, where they restrict what you can do based on where you are, for example restricting your ability to watch the Braves if you're in Atlanta. Another example, likely more appropos, would be cable companies specifically targeting advertising based on a subscriber's location. In this case, solicitation is specific and intentional. For the site named in the suit, there is no such attempt.

As for libel-mill, that's a separate issue; one on which the barrister likely should have attacked rather than solicitation as it seems more tenable to me. Not gonna try to go further with that one though, as I have absolutely no training in journalism and the limitations of protection to free speech.

[Penguinisto]

Man, that's gotta suck...

But then, why didn't the guy post a C&D to the site's owners, then subpoena the IP addy and all other info about the defaming poster, then do the same w/ the ISP to get hold of the user? The RIAA does that all the time w/ ISP's to chase P2P users.

Also, does the website have a policy of retraction, or at least allowing a response by the person being talked about? Consider that next time they may not so easily dodge the bullet (e.g. the next offended/libelled/defamed dude may go to Florida --or already live in Florida-- and sue the owners directly).

IMHO, I'm glad that I left the dating rat-race aeons ago; one wonders what a psycho ex-s/o would pull nowadays.

/P

[Victim of Cyberstalking]

I can tell you what a psycho does

RE: IMHO, I'm glad that I left the dating rat-race aeons ago; one wonders what a psycho ex-s/o would pull nowadays.

A psycho stalks you off and online. There are many sites that will post defamitory and personal information. Check out cheaternews.com, they wont remove any posts. They believe the first amendment allows harrassment. There are some sites that do allow people to post but will remove a posting if they are requested to.

[NoVista]

50/50

It's not libel if it's true [and you can prove it].

Sure, some of these women are angry, resentful, want revenge. Some are probably scared of an unforunate relation, and rightfull so.

For every "Fatal Attraction" psycho there are many more men whose lifestyle justifies abusing women, whether physically or verbally.

Not that I would ever be found as a 'bad example' there but my approach would be "say you piece and be done with it."

It's a foregone conclusion that the response to that would be a battalion of radical feminists who believe All Men Are Always Wrong. Who cares about their delusions? So, 'sticks and stones', ignore it and move on.