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Website Cases Survey Result__ the Zippo Decision is Still the Leading Case - If the Decision is Used Faithfully

Website Cases Survey Result__ the Zippo Decision is Still the Leading Case - If the Decision is Used Faithfully

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Website Cases Survey Result: The Zippo decision is still the leading case – if the decision is used faithfully
Website Cases Survey Result: The Zippo decision is still the leading case – if the decision is used faithfully

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Published by: hssph on Aug 13, 2010
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01/19/2011

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Electronic copy available at: http://ssrn.com/abstract=1114745
 
© 2008 Henrik Spang-Hanssen – page 1/18
Henrik Spang-Hanssen
Website Cases Survey Result:The Zippo decision is still the leading case– if the decision is used faithfully
 
Citation:
Henrik Spang-Hanssen, Website Cases Survey Result: The Zippo decision is still the leading case – if the decision is used faithfully. SSRNhttp://ssrn.com/abstract=1114745 
This paper can be downloaded without charge fromSocial Science Research network Electronic Paper Collectionhttp://ssrn.com/abstract=1114745© 2008 Henrik Spang-Hansssene-mail:hssph@yahoo.com Research website:www.geocities.com/hssph SSRN Author:
 
http://ssrn.com/author=943044
 
 
Electronic copy available at: http://ssrn.com/abstract=1114745
 
The Zippo decision is still the leading case – if the decision is used faithfully
© 2008 Henrik Spang-Hanssen – page 2/18
Website Cases Survey Result:The Zippo decision is still the leading case– if the decision is used faithfully
 
By Henrik Spang-Hanssen
1
 
Abstract
:This article deals with court’s determination of personal jurisdiction over non-residents (aliens) on basis of the content of websites.It is build upon a survey of nearly every single published American case from 1991-2001 involvingwebsites; and where the first eliminating factor has been whether the court based its decision also uponother facts than a website.The remaining – what could be called purely online - cases was then in the survey split up on basis of the features on the website, building up a true gliding activity scale as suggested by the Zippo court – not athree-part division that many courts have used and wrongfully cited the Zippo decision for.Of those cases that found jurisdiction upon only the web activity, the survey shows all were in realitydoing business online; whereas cases not reaching this requirement on the survey’s formulated glidingscale rejected to exercise personal jurisdiction.The article contains some overview tables on the cases related to this gliding scale.It is the author’s opinion that is has no real sense to discuss decisions and websites, if the latter has notbeen the only determining factor for exercising personal jurisdiction. Then the case is just based on thesame pattern as all other cases, namely a decision upon a total of facts allowing personal jurisdiction over non-residents (aliens) and thus giving no problems using the old (normal) minimum contact test.The Zippo decision’s requirement of only exercising specific personal jurisdiction when the highest levelon the gliding scale is reached, seem to have been followed by all other courts that also decided to exercisepersonal jurisdiction.Thus, on basis of the survey, the Zippo decision is still the leading case – if the decision is usedfaithfully, and its gliding scale method seems to be an appropriate method to decide when a non-resident(alien) defendant with only “contact” in form of a website has made such links (a basic requirement under public international law) to the forum that it is reasonable to call him to the forum court.The Zippo gliding scale should also be used by courts outside the United States when only website factsare involved and an alien defendant is involved.
 
1
Henrik Spang-Hanssen – an independent senior researcher - is by several person involved in public international law regarded asan extraordinary scientist and the one or one of very few that is an expert on the issue of the interconnection between publicinternational law and public international computer network (the “Internet”). He has primarily done research from StanfordUniversity in California, Oxford University in England, and the Norwegian Research Center for Computer and Law, OsloUniversity, Norway. He first time used a computer back in 1971 at the Niels Bohr Institute in Copenhagen. He has Master’sdegrees in Law from Denmark and California (US High Tech Law). He is a licensed Supreme Court attorney-at-law inDenmark and has previously worked as prosecutor in Danish Appeal Courts. He is a previous student at the TechnicalUniversity of Denmark.He is the author of the books: Cyberspace Jurisdiction in the U.S. (2001), Cyberspace & International Law on Jurisdiction(2004), and Public International Computer Network Law Issues (2006), Legal Research Methods in the US and Europe(2008)(co-author Paul Lomio).
 
 
The Zippo decision is still the leading case – if the decision is used faithfully
© 2008 Henrik Spang-Hanssen – page 3/18
A.
 
 Introduction
In a great number of cases in the U.S. where a website has been one of the facts the plaintiff has tried toconvince the court to exercise personal jurisdiction over the defendant based on the existence of the website.Thus, the question as to what kind of activity a website has to have for allowing exercise of jurisdictionhas arisen in the courts.This article is build upon a survey of nearly every single published American case from 1991-2000 wherea website has been mentioned between the facts. Non-commercial websites are excluded from this articlesince the Zippo decision itself points out its test is outlined for commercial websites.It is my opinion that is has no real sense to discuss decisions and websites, if the latter has not been theonly determining factor for exercising personal jurisdiction. Then the case is just based on the same patternas all other cases, namely a decision upon a total of facts allowing personal jurisdiction over non-residents(aliens) and thus giving no problems using the old (normal) minimum contact test.In a first table are listed cases that exercises jurisdiction and where web-content has been referredthoroughly in decision. Thus, making it possible to determine what features the website contained.In a second table is from the first table deleted cases involving: (a) Defendants domain name andPlaintiff’s mark – for these two categories will exist some kind of registration and physical certificate, whichin the authors opinion distinguish such cases from regular web-activity cases - and (b) cases that should nottruly be classified as doing business on-line.Thus, the second table only contain cases where the activity on the website has evidenced business on-line – and where other facts has not been determining whether special personal jurisdiction was found.A further determination on cases in the second table makes the author remove two cases since they do notfollow the pattern where courts require a plaintiff to show evidence that the defendant actually have sold or given online support through the website.Since the contents of a website can be seen by all cybernauts worldwide – unless it requires a password toget further than the homepage – a U.S. court determination on a certain website’s activity ought to be thesame in every court, because the technicality of the website is of course the same everywhere. The only tworemaining questions would be whether or not another court would hold that a higher or lower level of activity was required for exercising personal jurisdiction in that other court; and whether that court wouldfind the particular website was aimed at the forum.
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 Initially for those not acquainted with the U.S. rules of personal jurisdiction it should be mentioned thatthe upper limit of the jurisdiction rules over a non-resident has been made by the U.S. Supreme Court anddivided into a General personal jurisdiction rule and a Specific personal jurisdiction rule. The later could becalled an extraordinary jurisdiction rule. Further, should pointed out that U.S. courts when deciding the personal jurisdiction rule does not take any account of the subject matter discussion.
2
The article is partly built on Chapter IV of the book H
ENRIK 
S
PANG
-H
ANSSEN
:
 
C
YBERSPACE
J
URISDICTION IN THE
U.S.
 
-
 
T
HE
I
 NTERNATIONAL
D
IMENSION OF
D
UE
P
ROCESS
(Norwegian Center for Computers and Law, Oslo University, 2001- ISBN 82-7226-046-8) (431 pages), which is also available from Social Science Research Network at http://ssrn.com/abstract=1105703.

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