Published by LawTechie - July 12, 2012 - LawTechie

Internet lawAn interesting development in internet law out in California has caught my interest by way of Eric Goldman’s blog. It seems that one Northern District of CA court ruled that using a Facebook account to promote your business subjects you to California jurisdiction in a suit by an unrelated third-party, while another court said it does not.

Ironically, the plaintiff is the same in both cases (different defendants), so the two judges are really at odds!

By way of background, Facebook is not a party in either suit. It just so happens that both defendants used Facebook to promote their relative businesses and, since Facebook resides in California, the judges were asked to decide whether using Facebook in such a way sufficiently subjected defendants to be sued in California.

Most first year law students read the classic Calder v. Jones case as their introduction to just this jurisdictional question (albeit that ruling preceded the internet). Calder asks courts to decide whether a defendant has made sufficient “minimum contacts” with a forum state to be subject to jurisdiction in that state pursuant to the Due Process clause of the Fourteenth Amendment.

So in these cases, the courts were asked whether using Facebook to promote your business created sufficient minimum contact with California. Judge Koh said yes, now Judge Corley is saying no.

In my opinion, Eric is right in supporting Judge Corley’s decision in that Koh’s decision would render the “expressly aimed” prong of the Calder test meaningless. Specifically, it makes no sense to say that by using Facebook or Twitter to promote your business, just because those companies reside in California, you are expressly aiming your actions at California such that you should be subject to lawsuit there for completely unrelated causes.

Now we’ll have to wait on a 9th Circuit decision to reconcile the two courts.

LawTechie is a blog focusing on trends in tech and digital media. Areas covered include intellectual property, cyberlaw, venture capital, transactions and litigation as they relate to the emerging sectors. The blog is edited by the firm's partner Tim Bukher with contributions from the firm's experts in their respective areas of law.


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