The Internet is composed of proactive and reactive services. Proactive services are E-Mail, the Usenet news groups and Telnet. With E-Mail, the most basic service on the Internet, one user can send a message to another. News groups are a form of E-Mail through which people who share common interests post messages in a public forum. There are approximately 20,000 news groups to which people can "subscribe." A key element of these systems is that messages are directed by the writer either to a particular person or to a particular group of people. The Telnet service allows a user to physically access remote computers as if they were local. Lexis/Nexis and Westlaw, though not strictly Telnet services, are analogous.

Reactive services include "Gopher", "File Transfer Protocol" or "FTP", and the WWW. Such services enable searching and acquisition of data from a remote computer ("server"). A Web server is defined as: "...a program that accepts requests for information framed according to the HyperText Transport Protocol (HTTP). The server processes these requests and sends the requested document." Que's Computer and Internet Dictionary 554 (6th ed. 1995).

A person connected to the Internet (the "Client") can access central information databases (Yahoo, Alta Vista, etc.) and, by providing key words, receive a list of servers which may house the desired information. The Client then requests the information from the listed servers, and if the request is valid, the information is served or "downloaded" to the Client. Servers do nothing unless asked. The WWW is unlike radio and television, where the data is present regardless of a viewer. On the WWW, there is no omnipresent signal. If no one logs on to the Net, the Net is silent. The fact that the information is "dormant" should make a difference for purposes of asserting jurisdiction.

In order to establish personal jurisdiction over a non-resident defendant, he or she must either have (1) "substantial, continuous and systematic" presence in the forum state, which would give the court general jurisdiction over the defendant, or (2) certain "minimum contacts" with the forum state such that maintenance of the suit does not offend "traditional notions of fair play and substantial justice." International Shoe Co. v. Washington, 326 U.S. 310 (1945). To determine whether a person or business is continuously and systematically present in a forum state, a court will not look solely at the number of "hits" or customers that a Website will receive from a particular state, but will evaluate the "totality of circumstances" to evaluate the relationship among the defendant, the forum and the litigation. (A "hit" is a download of a webpage. As a practical matter, it is impossible to determine from where a hit originates, unless the website specifically requests that information.) Calder v. Jones, 465 U.S. 783 (1984). Similar to a regular print publisher, if a business derives a significant number of customers from a particular state as a result of their Website, it might anticipate that it would be required to defend any litigation that may result in that state. There is no magic number of "hits" that would trigger general jurisdiction. Although the United States Supreme Court suggested that a print publisher that circulates 10,000 to 15,000 magazines a month in a state should reasonably anticipate answering for the truth of its publications there (Keeton v. Hustler, 465 U.S., 770. 780-781 (1978)), the dormant nature of the information posted on a Website would suggest that the subscribers are "going to" the Website, and not the other way around. See Thomas P. Gonzalez v. Consejo Nacional de Produccion de Costa Rica, 614 F.2d 1247, 1254 (9th Cir. 1980) (where the court agreed that mere use of the mails, telephone and other international communications do not alone qualify as activity sufficient to find general jurisdiction).

The more interesting question arises where jurisdiction is based upon the more limited "minimum contacts." The courts have said that, in order to find the requisite "minimum contacts," the nonresident defendant must (1) "purposefully direct his activities or consummate some transaction with the forum or its residents," (2) the claim must arise out of or relate to the defendant's forum related activities, and (3) the exercise of jurisdiction must be fair and just. See Core-Vent v. Nobel Industries AB, 11 F.3d 1482, 1485 (9th Cir. 1993). In California Software, Inc. v. Reliability Research, 631 F. Supp. 1356, 1361 (C.D. Cal. 1986), the court said, in relation to a statement posted on a bulletin board service, that "[t]he mere act of transmitting information through the use of interstate communication facilities is not ... sufficient to establish jurisdiction."

It is possible that a mere posting of information on a Website could alone be the basis to find jurisdiction in a foreign state if the information involves defamatory statements that are expressly directed at a resident of that state. In Calder, the Supreme Court found that an article published by the National Enquirer about actress Shirley Jones, where the reporters knew that Jones lived and worked in California and that she would bear the brunt of the injury in California, they should "anticipate being haled into court there to answer for the truth of their statements." 465 U.S. at 789. The fact that the information is not actively "disseminated" by the defendant may not make a difference, as exemplified by the court's finding in Brainerd v. Governors of the University of Alberta, 873 F.2d 1257 (9th Cir. 1989), where the court found that an alleged defamatory statement made in one telephone call received by the academic vice president of the University of Alberta about a former faculty member was sufficient to require the academic vice-president and the University to appear in Arizona to defend the truthfulness of the statement. Importantly, in Brainerd, although the call originated from Arizona to Alberta, the statement made by the defendant, was "directed" at Arizona, sufficient to find that there was some conduct "purposefully directed" at the forum state. In the context of a Website, information does not flow to the recipient, but is posted and available for the viewer to see. Thus, if a defamatory statement is posted on a New York-based Website about a California resident, but the only person to view the Website resides in Florida, it should make a significant difference to a court considering whether to assert jurisdiction over the Website owner.

It is conceivable that other claims arising from the content of a Website, such as copyright, trademark, and invasion of privacy claims, could be sufficient to meet tile Calder "effects test." See, e.g., Thomas Jackson Publishing, Inc. v. Buckner, 625 F. Supp. 1044, 227 U.S.P.Q. 1048 (D. Neb. 1985) (in which the court sitting in Nebraska found that the defendant's alleged infringement of plaintiff's copyrighted song was conduct "purposefully directed" at the plaintiff sufficient to find jurisdiction).

In addition to the "minimum contacts" test, a court must find that jurisdiction comports with the notions of fairness and substantial justice. The court in Core-Vent Corp. considered seven factors to determine whether jurisdiction over two Swedish doctors was fair: (1) the extent of the defendants' purposeful interjection into the forum state's affairs; (2) the burden on the defendants of defending in the forum; (3) the extent of conflict with the sovereignty of the defendants' state; (4) the forum state's interest in adjudicating the dispute; (5) the most efficient judicial resolution of the controversy; (6) the importance of tile forum to plaintiff's interest in convenient and effective relief; and (7) the existence of an alternative forum. 11 F.3d at 1487-88. All of these factors will be balanced against each other and no one factor will be dispositive.

In any circumstances, the jurisdictional analysis is an imprecise inquiry; however, the unique nature of the Internet should give a court additional pause before asserting jurisdiction based solely on the existence of a Website. Even where the content of the Website can be said to be focused on a resident of a forum state, as in the case of a libel claim, the court should carefully consider whether the information was directed at the complaining plaintiff, or merely a statement floating in cyberspace.

Dennis F. Hernandez is a partner in the law firm of Baker & Hostetler specializing in First Amendment and intellectual property matters. David May is an information specialist in that firm.

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