Socializing Over State Lines: Social Media as a Basis for Personal Jurisdiction

When can using social media get you sued in a state that you don’t live in, and may never even have visited?

The “Minimum Contacts” Standard for Personal Jurisdiction

That’s a question of “personal jurisdiction,” the legal term of art for a court’s right to exercise its judicial power over a specific person.  Whether or not it’s fair for a court in one state to exercise jurisdiction over a person who lives in another state is a question of due process.  The answer depends on the facts of each specific case, and the strength of the connection between the person and the state that the evidence shows.

As interpreted by the Supreme Court, the Due Process Clause of the US Constitution protects an individual’s liberty interest in not being subject to the binding judgments of a state with which he has established no meaningful contacts, ties, or relations.  Jurisdiction may be exercised over a nonresident defendant only when the defendant has purposefully established such minimum contacts with the forum state that the defendant could reasonably anticipate being sued

The internet has made this test harder to apply, as I’ve written about before.  Courts have been struggling for decades now to define when such minimum contacts are established online.  The ease of interacting with people across the country and the world through social media has only made that analysis more difficult, and courts have come down on both sides of the line in various cases.

The following three cases demonstrate that relatively minor factual details can make a big difference in determining whether or not a person will be subject to jurisdiction in a foreign state.  The fact that all three cases happen to be from the same court–the Texas Court of Appeals–illustrates how difficult it can be to predict the result in any given case.

Getting Hale‘d Into Your Facebook Friend’s Home Court

The 2012 decision Hale v. Richey involved a spat between the widow and adopted daughter of the recently deceased Mr. Richey.  After his passing, the daughter, Ms. Hale of California, unleashed vitriolic attacks on the widow, a Texas resident.  Among her claims were that the widow had kept Mr. Richey in ill health to hasten his death, and that she’d mishandled his trust fund.

In supporting the jurisdiction of the Texas courts over Ms. Hale, Mrs. Richey asserted that (1) Hale’s comments were quoted in a national publication that is “sold at almost every grocery store in Texas”; (2) Hale made defamatory statements about her to at least one relative in Texas via telephone and text message; (3) she used Facebook as a medium to defame Richey to multiple recipients whom she knew to be in Texas; and (4) the claims related to Richey’s involvement in administering a Texas-based trust.  All of these reasons taken together were good enough for the trial court to exercise jurisdiction over Hale.

The appellate court upheld this decision.  It found Hale’s telephone calls and text messages to Texas residents about a Texas-based trust sufficient to support personal jurisdiction over her in Texas.  So it didn’t need to specifically decide whether the Facebook postings, alone or in combination with the other statements, were enough.  The court appeared to distinguish the Facebook posts and “national publication” because they were general publications that happened to be read by Texans among others.  Those are necessarily less “targeted” communications than phone calls and text messages, which by nature are directed to specific individuals.  But the Facebook posts were part of evidence on which the trial court based its decision.  And certainly, the more intentionally targeted they were, the more likely they would have been to support the court’s jurisdiction in this case.

Social Media Cases Don’t Always Fit the Mold of “Old” Internet Case Law

The Hale case notwithstanding, however, sometimes the mere allegation that someone out of state defamed you online won’t be enough to establish jurisdiction over that person in your home state.  RSL Funding, LLC, a Texas-based financial services company, found that out the hard way when it sued Jerry Wilkerson–a California resident–for negative reviews he posted about the company on Yelp and the consumer review section of Yahoo.

Wilkerson’s daughter had won the California State Lottery, then sold her rights to RSL for a lump sum.  When her relationship with RSL went sour, Wilkerson posted lengthy complaints about the company.  Wilkerson never realized that both Yahoo and Yelp would publish his reviews on “local” pages geared towards Texas residents.  But RSL claimed that Wilkerson had “purposely directed his actions at Texas,” since RSL was based there. The trial court agreed with RSL and upheld jurisdiction over Wilkerson.

But the Texas Court of Appeals reversed, making the important point that the traditional “Zippo sliding scale” of interactivity analysis usually used to determine whether a particular website targets a certain jurisdiction can’t be applied to an individual user of social media.  The Wilkerson court noted that, under the Zippo test, “the likelihood that personal jurisdiction can be constitutionally exercised is directly proportionate to the nature and quality of commercial activity that an entity conducts over the Internet.”  But even though Yelp and Yahoo “may themselves be considered interactive, a third party’s use of the website may, in effect, be a ‘passive’ usage.”  Here, even if Yahoo and Yelp published Wilkerson’s comments on their “local” Texas pages, “the geography related to the intentions of the website operator or a hypothetical web searcher, without more, is not  relevant to our analysis of whether Wilkerson had the minimum contacts with Texas necessary to support jurisdiction in this case.”

The court even went so far as to find it “common knowledge … that websites such as Yahoo! and Yelp commonly repackage and republish user contributions along with other information like the maps, addresses, photographs, and other identifying characteristics relied upon by RSL.”  Because Wilkerson had no intention to direct his comments specifically toward a Texas audience, or ability to control what Yahoo and Yelp did with his comments, the court found no basis for jurisdiction over him.

Be Careful What You Tweet For — You Might Get It

Companies have discovered social media as a great way to drum up business.   But if they’re not careful, they may end up “getting the business” in ways they weren’t hoping for. In Waterman Steamship Corp. v. Ruiz, the Texas Court of Appeals upheld the exercise of personal jurisdiction in Texas over the shipping company Maersk.  The subject matter of the complaint–a pirate attack–occurred in Africa, and Maersk is a Delaware company based in Virginia.  But some of the plaintiffs suing it were sailors from Texas, so they filed in their home state. The court examined all of Maersk’s various contacts with Texas to determine if requiring it to appear in Texas courts was fair.  There were various points of connection–an employee based there, and some transactions undertaken there.

But one of the most interesting and significant facts that the plaintiffs relied on was the fact that Maersk frequently used Twitter to solicit business in Houston.  Specifically, Maersk’s ships often docked in the Houston port.  And when those ships had unused cargo space, Maersk would tweet that information in the hopes of lining up extra cargo in Houston.  Maersk also used its Twitter feed to announce estimated arrival times into various ports, including Houston, and to advertise the capabilities of its ships.  This became a key portion of the evidence that the court relied upon to uphold jurisdiction over Maersk in Texas.

All of which goes to prove that, when you step into the social media world, you can never be quite sure where it will take you.