The Fordham Center on Law and Information Policy (CLIP) has issued a report “Internet Jurisdiction: A Survey of Legal Scholarship Published in English and United States Case Law” examining the case law and legal literature analyzing jurisdiction for claims arising out of Internet activity in the United States. The report finds that despite definitive case law, the practice of U.S. courts “lacks uniformity”.
The report concludes:
With respect to U.S. case law,the research indicates that issues surrounding Internet jurisdiction gravitate toward the Ninth Circuit and the Second Circuit more so than other federal circuits. Further, the research demonstrates that, contrary to the body of academic literature, U.S. courts predominantly adjudicate matters of personal jurisdiction in Internet cases rather than other subsets of jurisdiction, and that Internet jurisdiction issues trend toward intellectual property and defamation cases. With regard to how Internet jurisdictional matters are settled within U.S. jurisprudence, the research results indicate that the Zippo and Calder tests remain the dominant ones applied, but that these tests are not mutually-exclusive. Although Zippo is most often applied in matters of specific jurisdiction, there exists a varied and, at times, blurred framework which incorporates the Zippo sliding scale and Calder’s effects test, as well as traditional standards for personal jurisdiction. Therefore, although the landscape for Internet jurisdiction matters has clear, predominant legal standards and tests, on the whole, when and how these are applied by U.S. courts lacks uniformity.
A companion study, “Internet Jurisdiction: A Survey of German Scholarship and Cases” was issued simultaneously. It reports that, although various trends can be identified within German and EU case law, no consensus on the treatment of international jurisdiction can be ascertained.
From its conclusion:
Within the discussion of the courts’ power over litigants, three trends can be identified in the opinions. First, this report shows that one view regards the mere accessibility of a website as a determinative factor that establishes jurisdiction everywhere in the world. This concept is often called “flying jurisdiction.” A second view adds the element of “intention” and would require intentional accessibility. Finally, the report shows that the third view treats the German Federal Supreme Court’s New York Times decision as introducing a new test wherein the website needs to have an objective domestic connection. Articles discussing this case focus on three main issues. First, articles describe the test as too vague and too imprecise to achieve legal certainty, however they note that the court at least made clear that mere accessibility is insufficient. Second, some articles raise the question of whether that test can and should have a broader application beyond the scope of personality rights cases, e.g. in intellectual property rights infringement cases. Lastly, a few articles find it unfortunate that the eDate decision of the European Court of Justice failed to establish equal treatment of § 32 ZPO and Article 5(3) of the European Regulation 44/2001, and missed the chance to create uniformity in Europe and Germany.