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February 13, 2017
We’ve all seen it. You may have even done it; an angry post on a social media site that challenges the character of an intended target. For example, an ex-wife, ravaged with disdain for her cheating former spouse, posts a series of fabrications in an effort to damage his reputation among friends. Or the humiliated employee who goes online and creates “fake news” about how his former employer treats their employees horribly. Unfortunately, these acts may give rise to a foreign court’s ability to assert jurisdiction over you; forcing you to defend yourself on the other side of the country.
While it might be obvious that these types of defamation actions will classically land the poster in court, what happens when the intended target lives in a different state? What if a person from California makes a posting about someone in Pennsylvania and the “victim” wants to sue in their home state? That’s where the state’s long-arm statute comes in to play. In its most basic form, the long-arm statute determines when a citizen of one state may be hurled into the court of another state and subject to that court’s jurisdiction. Among other assessments, the most common analysis in such a situation is the “minimum-contacts test”, which determines if the person has sufficient contacts with that state as to be subject to its jurisdiction. For example, if the person owns property in the state, does business there regularly, or goes there so often that one would consider it his “second home”, then he might be found to have minimum-contacts and, therefore, subject to the state’s jurisdiction.
But what about an internet user who makes a posting about someone halfway across the country? Should the poster be subject to the jurisdiction on the target’s home state courts if the poster never stepped foot in that state? Different states answer this question differently, but depending on the circumstances, that answer may very well be “no”. Many states (not all, of course) will use a targeting and directionality test to determine whether jurisdiction is proper.
Targeting involves posting your statement with the purpose of it being seen by an intended reader; for example, targeting the ex-husband, or the former employer. This is accomplished, and proven, rather easily. If you tagged the person in the post, or your used their name with the intention that it link to their profile, it’s very likely that targeting will be proven. But if your post mentions “Frank” or “my old job”, that might not be enough to prove targeting. Unfortunately, if you find yourself in this situation, it’s probably because you rage-posted and without a doubt made sure you tagged them.
Proving directionality, however, may not be as easy. The plaintiff will be required to show that your posting was expressly and specifically directed at the forum state. For example, if you tag both your former business partner and the business itself, both of which are located in Pennsylvania, then a fact-finder may believe that you intended your statement to be directed at Pennsylvania. But let’s say your former business partner is no longer in PA, or you happen to know she’s in Hawaii on vacation (because you’ve stalked her profile, of course)? In that case, it might be harder to determine that your post was directed at Pennsylvania and, therefore, may keep PA courts from asserting jurisdiction over you.
In the end, the best way to avoid a lawsuit for defamatory postings is simple: don’t do it! But if you find yourself in the unenviable position of defending a foreign lawsuit for your “heat of the moment” rant, keep in mind that you may not actually be subject to that state’s jurisdiction.