The Eastern District of Virginia recently dismissed an online defamation case on personal jurisdiction grounds. The case related to a gun-aficionado blog, created in Arizona and aimed at a “nationwide marketplace of consumers of firearms,” which contained negative reviews about a product. Because the operators of the blog did not specifically direct their online review to a Virginia audience, the court found that the defendants failed to satisfy the minimum contacts test needed to establish personal jurisdiction.
The court’s decision follows a long list of opinions on Internet-related personal jurisdiction, in which courts evaluate whether the defendant purposefully targeted a particular forum. The primary takeaway from this case aligns with that prior precedent: website postings about a product or service directed to a national – or even worldwide – audience are generally insufficient to confer jurisdiction over the website’s operators. Notably, the court rejected the plaintiff’s argument that jurisdiction must lie in the state where the plaintiff experienced reputational harm.
The plaintiff in FireClean, LLC v. Andrew Tuohy, Case No. 1:16-cv-00294-JCC-MSN, 2016 WL 3952093 (E.D. Va. July 21, 2016) is a Virginia company which purports to manufacture a specialized oil reducing carbon residue buildup in firearms. FireClean alleged multiple counts of defamation and other claims against defendant Andrew Tuohy, the operator of a firearms website called Vuurwapen Blog, after the blog performed tests that compared the chemical makeup of FireClean to canola oil and soybean oil. After analyzing the test results, Tuohy posted that FireClean actually was “nothing more than Crisco vegetable oil.” The blog later published other reviews criticizing the product’s chemical composition.
FireClean accused Tuohy of making defamatory statements, arguing that the blog posts intentionally misled consumers about the oil’s composition. FireClean further alleged that Tuohy attempted to injure FireClean’s reputation while attracting more readers to the blog.
FireClean brought the lawsuit in its home state of Virginia, although Tuohy resides in Arizona. Tuohy moved to dismiss the complaint on both jurisdictional and substantive grounds. In following a plethora of precedential cases where courts have adapted the traditional “minimum contacts” test to technological advances and Internet-related businesses, the Eastern District of Virginia dismissed the claims for a lack of jurisdiction. A copy of the court’s order is available here.
The landmark opinion examining personal jurisdiction when an entity conducts commercial activities over the Internet is Zippo Mfg. Co v. Zippo Dot Com, Inc., 952 F. Supp. 1119, 1124 (W.D. Pa. 1997) (adopting a sliding scale approach in reasoning that jurisdiction over a website is determined by examining the level of interactivity and the nature of the exchange of information that occurs with users). Here, the court found that the Fourth Circuit had slightly altered Zippo’s test by developing the following standard:
“[A] state may, consistent with due process, exercise judicial power over a person outside of the State when that person (1) directs electronic activity into the State, (2) with the manifested intent of engaging in business or other interactions within the State, and (3) the activity creates, in a person within the State, a potential cause of action cognizable in the State’s courts.”
ALS Scan, Inc. v. Digital Serv. Consultants, Inc., 293 F.3d 708, 714 (4th Cir. 2002).
In relying on ALS Scan and other Fourth Circuit cases, the court rejected FireClean’s argument that Tuohy’s contacts should confer jurisdiction in Virginia. The court explained that the defendant had not purposefully availed himself of doing business in Virginia nor had he established any significant connections with the plaintiff’s chosen forum. The mere fact that an online server transmitting a website may be located in Virginia also failed to rise to the level of a purposeful contact, according to the court.
The court explained,
Touhy’s blog is hosted in Arizona by an Arizona company. To the extent a hosting company transmits Tuohy’s online content through servers located in Virginia, those unilateral actions by the hosting companies are not evidence of Tuohy’s purposeful targeting of Virginia . . . Plaintiff identifies nothing to indicate that [the blog was] specifically directed to Virginia readers. All relevant exhibits and allegations indicate the websites aim to distribute Tuohy’s opinions to the nationwide marketplace of consumers of firearms.
Additionally, the court distinguished the seminal case of Calder v. Jones, 465 U.S. 783 (1984), from the Fourth Circuit’s approach to jurisdiction. In Calder, the Supreme Court reasoned that the location of the plaintiff’s injury – and thus the state where the plaintiff suffered harm – served as an appropriate forum. Instead, the court relied on Fourth Circuit decisions in finding that mere injury to a forum resident is not a sufficient enough connection to confer jurisdiction. According to the court’s analysis, the focus should center on the defendant’s own contacts with the forum state, rather than targeting the place where the plaintiff suffered the alleged injury (a particularly thorny issue in cases where sales and profits have decreased nationwide, as a plaintiff then could assert that jurisdiction would be proper in any forum).
Thus, the Eastern District of Virginia dismissed FireClean’s claims on jurisdictional grounds. If FireClean decides to continue to pursue its defamation and conspiracy claims against Tuohy, it could re-file the case in Arizona, where Tuohy would likely be subject to a court’s jurisdiction.