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
: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.
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).