How Should International Purposeful Availment Grow with the Internet?

Courts have used internet activity to find personal jurisdiction in the United States.  Many of these cases have relied on either the Zippo test from Zippo Manufacturing Co. v. Zippo Dot Com, Inc or the Calder test from Calder v. Jones.  The Zippo test applies a sliding scale where a court looks at the interactivity versus passivity of a website to find purposeful availment and is considered to be the main standard in internet jurisdiction cases.  The Calder test has been used to determine if a website is targeting a specific forum state even if the website lacks enough Zippo interactivity.  Although the case law of internet purposeful availment between states in America is well developed, the increased global use of the internet has brought about new issues in the law.  Will a company with an interactive website in Russia or the United Kingdom be able to be sued in those forums?  Recently, Google has refused service in the U.K. for a privacy lawsuit brought by internet users in that country. In this still pending litigation U.K. users want to sue Google for alleged privacy violations when Google is run on Safari web browsers.  This is a similar claim to an American class action law suit last August where Google agreed to pay out $22.5 million.  This lawsuit highlights the growing relevance of internet based international purposeful availment.   I believe that an adoption of the Zippo test will significantly raise liability independent of company size, but an adoption of the Calder test will raise liability proportional to the size of the internet using company.

If the Zippo test is adopted, legal costs for all companies that use an interactive website will rise considerably.  Currently many startup companies are trying to innovate America and the world with interactive websites of all kinds.  When these sites go on the world wide web they can be easily accessed anywhere.  Personal jurisdiction in America was expanded slowly because a foreign party would be an outsider to the court and the foreign party would have to pay more to defend a lawsuit in another state.  These concerns grow exponentially when one defends a suit halfway across the world.  A large company would likely have foreign connections, the capital to translate documents and would likely not be unknown to foreign citizens, but the unfairness presented to any small or startup company would be astronomical.  This could lead to frivolous litigation which would deter startups from creating interactive internet innovation.

On the other hand, an expansion of Calder liability would not be as unfair to defendants.  Targeting a particular market suggests that the company has connections and language skills in a particular forum which would make purposeful availment in that forum less burdensome.  Additionally, larger companies will likely target more forums so the defendants which are best able to handle complex litigation will likely have the most purposeful availment.  These companies will be able to vigorously defend claims against them and thus will disincentivize the creation of frivolous litigation.  Cases like Yahoo! v. LICRA have followed this doctrine in the reverse direction granting American jurisdiction to a foreign group.

While it is difficult to speculate on how the international internet purposeful availment doctrine will develop in the future, I would support the expansion of the Calder doctrine above the Zippo doctrine.  International litigation can be significantly more expansive, unfair and burdensome to parties so jurisdiction should be granted cautiously.  Also, whereas in the past a business would likely have to have physical goods arrive to foreign customers to be subject to personal jurisdiction in that location, today parties easily enter forums since the world wide web layer of the internet is truly global and largely public.  The global nature of the internet and great costs associated with international litigation should direct future purposeful availment doctrine.

 

Leave a Reply