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DTCI: Determining personal jurisdiction in the Twitterverse

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TwohyWhat are, or should be, the contours of personal jurisdiction over foreign defendants who are alleged to have defamed forum residents using social media? The answer will vary depending on the social media platform at issue and the details of the communication at issue.

The two most prominent platforms — Facebook and Twitter — work in very different, one might say opposite, ways. One who posts an item on Facebook will generally know the scope of its distribution. The poster is presumed to be aware of his settings and whether his posts are visible to the world, only to his friends, or also to friends of friends. The poster will also know whether his post is made in a group which is open, closed or secret. And as a general matter, the Facebook poster will know the probable geographic reach of his post, given that users’ localities are public information. The poster can thus make a judgment about how widely a post will be distributed, whom it will reach, and in which localities it will be published.

The Twitter user, by contrast, has far less ability to predict whom or where a tweet will reach. Nearly 90 percent of users maintain public accounts. By its very nature, Twitter promotes the re-tweeting of user tweets. A user can be certain that a tweet will reach her immediate followers. Beyond that, however, things are murky. The original tweet may go no further than the user’s own followers. But if one of her followers who himself has 50,000 followers re-tweets her tweet, and some of his followers respond in kind, the scope of distribution can expand exponentially. Twitter generally affords the user less control than does Facebook over whom and where postings will reach, principally due to the re-tweeting mechanism.

The potential for a tweet to reach many more users and localities than originally anticipated has implications for the scope of liability and personal jurisdiction. Indiana holds that the author of a defamatory communication is liable for republication where this is a “natural consequence” of his actions. Powers v. Gastineau, 568 N.E.2d 1020, 1024 (Ind. Ct. App. 1991). Since Twitter users are presumed to know how the service works, including its re-tweeting mechanism, and users invariably have some familiarity with who their followers are (and thus how many indirect followers are in their potential network), it is difficult to argue that a Twitter user should be able to avoid potential liability for republished tweets. The scope of potential liability thus enlarged, one turns to the perennial question of jurisdiction.

Where a reasonable person in the poster’s position, having no general contacts with the forum, would fail to recognize that their tweet or Facebook post would be published in the plaintiff’s home state, specific jurisdiction will probably be absent. In such a case, the poster can not fairly be said to have purposefully directed his publication into the forum. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 471 (1985). A claim for defamation by a forum resident, arising from the tweet or post, will not relate to forum-state activities by the defendant. It is also significant that the author may have been unaware that the impact of his post or tweet would be felt in a particular forum, regardless of whether one formally applies the “effects test,” which represents the high-water mark for personal jurisdiction. Calder v. Jones, 465 U.S. 783, 788 (1984). Thus, a tweet which allegedly defames a secondary or tertiary follower should not support personal jurisdiction in the plaintiff’s home forum.

By contrast, a post that causes reputational harm to a direct follower on Twitter, a Facebook friend, or member of a Facebook group to which the poster belongs will more likely support jurisdiction in the plaintiff’s home forum. In that case, a good argument can be made that, owing to the author’s awareness that her tweet or post would be published in the forum, she has purposely availed herself of conducting activities in the forum, and that the litigation (like the injury) arises out of the author’s forum state activities. Once a court is satisfied that an exercise of jurisdiction would not be premised solely on the author’s “random, isolated or fortuitous” contacts with the forum state, Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 774 (1984), it must determine that jurisdiction would be fair and reasonable under the circumstances. This requires consideration of (1) the defendant’s burden in appearing; (2) the forum state’s interest in adjudicating the dispute; (3) the plaintiff’s interest in obtaining convenient and effective relief; (4) the judicial system’s interest in obtaining the most effective resolution of the controversy; and (5) the common interests of all sovereigns in promoting substantive social policies. Burger King Corp., 471 U.S. at 477 (citing World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 292 (1980)).

The first factor will almost always favor the defendant, the exception being where there are multiple defendants and the objecting defendant will arguably have to appear and testify as a material witness in any event. Where the plaintiff is a resident of the forum state, the second and third of these factors will weigh in the plaintiff’s favor. Under the single publication rule, a forum state typically will be found to have an interest in securing the most effective (and efficient) resolution of the controversy in a unitary proceeding. This leaves social policy, which may not be particularly relevant to a private defamation action, especially given that First Amendment concerns are generally not part of jurisdictional analysis. Calder, 465 U.S. at 790.•

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John Twohy is a partner in the Hammond office of Eichhorn & Eichhorn and is a member of the DTCI Board of Directors. The opinions expressed in this article are those of the author.

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  1. Am I the only one who sees that the City is essentially giving away the MSA site AND giving millions to build new buildings on the site when this site would be the perfect place for the Justice Complex? Across from City-County, check; keeping it centrally located, check, etc. It's my understanding that the GM site must be purchased by the City from Motors Liquidation Company. STOP WASTING WHAT WE ALREADY HAVE AND OUR TAX DOLLARS! The Ballard Administration has not been known for it's common sense...never voted for him and never will!

  2. This guy sounds like the classic molester/manipulator.

  3. Louis D. Brandeis was born in 1856. At 9 years of age it would have been 1865. The Brandeis family did not own slaves. My source Louis D. Brandeis: A Life, by Melvin L. Urofsky.

  4. My name is Matthew Lucas Major, I recently went through a jury trial in Bloomington , In. It was the week of Feb 19-21. Although I have been incarcerated since August 5, 2014. The reason I 'am writing to you sir is on the 21 of February the jury came in with a very excessive and wrongful verdict of guilty on 6 child molesting charges against my daughter who was 9 at the time I was accused. I also had 2 other Felonies one of Intimidation and 1 of Sexual Vicarious Gratification. Judge Marc Kellam on the second day of trial gave me a not guilty on those 2 felonies. The jury was sent out during that time and when brought back Judge Kellam told them to not concern themselves with the 2 Felonies that he ruled on them. They were told to not let evidence they had already heard influence there verdicts. I never in my life touched any child sexually and definitely not with my own daughter. When I was arrested Detective Shawn Karr told me I would be convicted guilty just on my daughters word even without evidence. That's just what happened. my public defender did me so wrong he never once proved to the court and jury all the lies the child told, and Jeremy Noel my public defender could of proven the lies easily. The stories in Serenity's depositions and Forensic interview changed and were not consistent as Prosecutor Darcie Fawcett claimed they were. Yet my attorney never mentioned that. The facts that the child accused me of full penetration in her vagina and rectum was proven lies. Doctor Roberta Hibbard of Riley hospital in Indianapolis confirmed Serenity's hymen intact, no scars, no tearing, no signs of rape to her. Yet my attorney didn't use that knowledge . the DNA was all in my favor. I tell you I will spend my entire life in prison going through rape and beatings etc. even Judge Kellam abused his authority by telling the jurors to listen and believe what the prosecutors side in evidence like my daughters testimony. In one interview with the detectives my daughter got flustered with her mom and said on camera " I'm saying what you told me to mom"!! Yet Mr. Noel said nor did anything to even resemble a defense attorney. Judge Kellam allowed edited version of a taped conversation between the child and her mother. Also Judge Kellam allowed the Prosecutor too bring in to my case a knife found under my seat, the knife wasn't part of my case. She was allowed by my attorney and the judge to put a huge picture of it on the screen and huge picture of my naked privates in a full courtroom and open court. Ms. Fawcett says to jury see how easy Mr. Major could reach the knife and cut his Childs throat. Even though I had no weapons charge against these cases. This gave the jurors prejudice thought against me thinking I threatened her with that knife and how scared she would of been knowing i could get it and kill her. On my sentencing court March 19, 2014 my public defender told Judge Kellam he wish to resign from being my attorney and wished for the court to give me outside council to file a error to trial or appeal. We were denied. Now after openly knowing my public defender don't want to represent me he has to. Well when as parents we make our kids clean a room when they really don't wish to, well the child will but don't mean she will do a good job, that's where I'm at with Mr. Noel. please dont ignore mine and my families pleas for your help . we have all the legal proof you could need to prove Im innocent. Please dont make my spend years in prison innocent when you can fix this wrong. Im not saying Im a perfect man or that I was a perfect dad to my 2 children none of us are. Ive made some bad choices in life and I paid for them. But I didnt ever touch or rape my daughter . I love my children with all my heart. And now through needing attention and a ex-wife who told my granny several times she wish she could put me in prison to get me out of their lives. Well my ex finally accomplished her goal. Sad part is she is destroying our daughter with all this horrific lies and things she taught my daughter to say. My daughter will need therapist to ever hope for a chance of a normal life after what she had done to her by her mom and their side of the family. My daughter told everyone even on stand she had a dream months before i supposedly molested her in this dream I was molesting her and when I finally did it matched her dream perfectly. She admitted to watching movies about little girls being molested and watching U-Tube videos about child molesting all before it happened supposedly to her. Doesn't that sound very unusual that a non molested 9 yr old would need to know so much about being molested? The only reason I could think a 9 year old would need so much information is to be prepared to know what to say and be able to say how it felt what took place etc.. So when questioned by authorities she would be prepared. And there again sir if a parent is pre grooming a 9 year old child she would need intimate details . Like telling her daughter about a couple moles on my private area. The child admitted to sneaking my cell and looking many many times at nudes of me and my girlfriend even one where my penis was entering my girlfriends vagina. In that picture my moles are obvious. Yet when prosecutor showed everyone in court my privates and pictures of the moles she said the only way the child would know about them is if she saw them for herself. My attorney once again said nothing about the pictures my child saw. Or could a ex-wife be able to describe my moles to help her case against getting rid of me? I beg you help me. This is my very existence. Ive lost everything , a good job, a wonderful girlfriend, my freedom, but worse thing Ive lost is my children. They were my reason to get up every morning and strive to be better. The wonderful bond I had with my Serenity is gone. After this I would be afraid to even hug her for fear of what next can they do to me. I'm not afraid to tell you I sit here in this cell and try to hold back my tears. Everyone knows you cant show weakness in prison. My life has already been threatened here at Wabash Valley Prison. After only 3 days of arrival. I was tricked into signing a waiver now Im in G Block General Population with 6 child molesting felony charges. Mrs. Hart as a 18 year old I almost died hooked to machines in hospital almost 1 month and now I know that fear was childish compared to this . I cant help but put emotions in this, after all Mrs. Hart Im human and God help Me I never been more afraid in my life. I didnt hurt my little girl I didnt touch her sexually. As much as it shreds me and fills my mind what Im facing I worry more about my mom and granny because of their great love for me mam they are suffering so deeply. I aint done this things but my loved ones suffering right along beside me and If you take my case you will be in essence freeing them also. I sent momma this letter and asked her to email it to you. I'm scared I have been done so unjustly by our legal system and I need you to fix this and give me freedom. I ask you please don't just ignore my pleas. Here in America its nice to be able to trust our legal justice system, well they destroyed my and my loved ones trust in our justice system . And I'm trusting in You !!! My entire family is suffering this nightmare with me. My 77 year old granny had a stroke and isn't doing so well. My single mother that raised 3 kids alone is dying from Lupus and since my arrest has stayed so sick and weary. Our lives torn to peices by a government I was taught I could trust in. my momma has tried so many innocent project and wrongfully accused and cant get anywhere. please please help me. A quote from the late Nelson Mandela: To be free is not merely to cast off ones chains, But to live in a way that respects and enhances The Freedom Of Others. I have Faith in you and your clinic to cast my chains off and give me freedom I do deserve as a wrongfully accused Man, son, brother, father, friend. Matthew Major DOC# 246179 Cause # : 53c02-1308-FA-000779 God Bless you. Please contact me with your decision so I know you made a life changing decision for me , just please at least write me so I know you care enough about your citizens to respond to cries for your help. You can speak openly with my mother Charlotte Spain (828) 476-0406: 71 Lakeview Dr. Canton, NC 28716 Thank You Matthew Major I know yall get thousands of request and inmates claiming innocence, and each person who are innocent deserve to have organizations like yours willing to fight for them and I give yall so much Thanks and I thank God everyday yall are out there caring enough to help free the innocents. Since discovering firsthand how easily lives and families can be destroyed by Poor Defense attorneys not doing their job . And Prosecutors allowed to do as they please in court

  5. Frankly, it is tragic that you are even considering going to an expensive, unaccredited "law school." It is extremely difficult to get a job with a degree from a real school. If you are going to make the investment of time, money, and tears into law school, it should not be to a place that won't actually enable you to practice law when you graduate.

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