The Florida Supreme Court recently ruled that the state’s long-arm statute applied to a nonresident who posted allegedly defamatory material to an out-of-state website about a corporation in Florida.
Even though the ruling requires proof of publication within the state, Florida is the fifth jurisdiction in recent months to take a broad view of jurisdiction arising out of web postings about their residents. Courts in Illinois, Indiana, Kansas, New Mexico and Ohio all recently have held that nonresidents who allegedly defamed a resident online expressly directed their statements to audiences in those states and therefore meet the minimum contacts standard.
However, courts in Arizona, Minnesota, Missouri, New Jersey, New York and West Virginia take the opposite view. They continue to hold that without specific evidence that web posters have directed their comments toward audiences in their states, their respective long-arm statutes are not satisfied merely when a nonresident posts allegedly defamatory material about one of their residents online.
In the Florida case, a blogger from Washington state posted accusations to her website that an employment and recruiting company in Florida was engaged in ongoing criminal activity. The website did not specifically mention any Florida consumers, but it did list the Florida addresses of the company and its affiliates. A number of third parties, including several individuals who stated that they were from Florida, posted comments on the website about the accusations.
The company filed a diversity action in federal court, alleging defamation. The blogger moved to dismiss for lack of personal jurisdiction, arguing that she did not commit a tortious act in Florida for purposes of satisfying the applicable section of Florida’s long-arm statute, and that even if long-arm statute was satisfied, subjecting her to Florida’s jurisdiction would violate due process.
The district court agreed with the blogger, finding that although she did not sufficiently rebut the company’s claims that a tort was committed in Florida, the exercise of personal jurisdiction would violate due process. The court reasoned that there was no evidence that the blogger specifically targeted Florida residents by posting the allegedly defamatory material on her website, which was accessible everywhere.
On appeal, the Eleventh Circuit recognized that under Florida law, a person does not have to be physically present in Florida to commit a tortious act in the state. For example, a nonresident defendant could commit a tortious act within Florida for purposes of meeting the long-arm statute when that defendant sent “telephonic, electronic, or written communications into Florida” and the cause of action arose from those communications.
The Eleventh Circuit noted, however, that the Florida Supreme Court had not yet addressed whether postings to an out-of-state website about a company in Florida constituted “electronic communications into Florida” for purposes of satisfying the long-arm statute and certified that question to the Florida Supreme Court.
The Florida Supreme Court affirmatively answered the certified question and held that the long-arm statute is satisfied when allegedly defamatory material about a Florida resident is placed on the Web and accessed or “published” in Florida. Internet Solutions Corp. v. Tabatha Marshall, No. SC09-272, 2010 WL 2400390 (June 17, 2010). The Court rejected the idea that sending “electronic communications into Florida” requires that a poster of online material must target specific Florida residents. Rather, the Court reasoned that someone posting material online directs the communication to potential readers within Florida because the poster makes the information available everywhere, including in Florida.
The implications of this decision, and the others like it, are extremely broad. Although this decision raises practical considerations about how a plaintiff will establish that a Florida resident has accessed the information, conceivably, anyone who posts allegedly defamatory material about a Florida resident to a website can be hauled into court in Florida. The Florida Supreme Court, however, expressly declined to address the due process implications of its ruling, leaving open the possibility that defendants might avoid the reach of Florida’s long-arm statute by raising constitutional concerns.