What 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.•
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.