A California court of appeal recently decided that posting allegedly defamatory statements from Illinois on the Internet about a person living in California, without more, did not create “minimum contacts” for purposes of personal jurisdiction. In Burdick v. Superior Court (Sanderson), No. G049107, January 15, 2015, a Texas skincare company, Nerium, initiated a “campaign of harassment” against two California scientists. The scientists’ website, barefacedtruth.com had published skeptical articles about Nerium products, provoking the company’s ire. Douglas Burdick, an Illinois-based consultant for Nerium, enthusiastically engaged in this campaign.
The “blogging scorpions”
After the California scientists published scathing blogs about the efficacy of Nerium’s products, the war began. Nerium’s CEO called the scientists “blatant, jerk liars” to his sales force and announced that he would reveal damaging facts against the men. Burdick, a “highly compensated” consultant for Nerium also took up the cause. On his Facebook wall, Burdick labeled one of the scientists “Blogging scorpion, liar, terrorist, pretender, amateur, wanna-be, con artist.” The post alleged that one scientist had lost his California medical license, had been charged with domestic violence and had used multiple social security numbers.
The scientists sued Nerium, its CEO and Burdick for defamation in California. Burdick lived, worked and posted the comments from Illinois, and had no other ties to California other than the Facebook comments about the California scientists. In response to the scientists’ lawsuit, Burdick moved to quash the summons for lack of personal jurisdiction, which the trial court denied. His writ petition was likewise denied by the court of appeal, before ultimately being reconsidered in light of the U.S. Supreme Court’s recent decision in Walden v. Fiore, 134 S. Ct. 1115 (2014), which as noted below, precludes a finding of personal jurisdiction based solely on where the “effects” of a defendant’s tortious action is felt.
Effects of defamation cannot be “minimum contacts”
Personal jurisdiction in defamation actions has long been controlled by Calder v. Jones, 465 U.S. 783 (1984). In Calder, the National Enquirer published statements made about a California actress in its print magazine, which was circulated in the actress’s home state of California. The Supreme Court held that jurisdiction in California was proper because the reporter’s actions were “expressly aimed” at the forum, which was the “focal point” of the story and the harm. Further the “effects” of the conduct were largely felt in California, where the magazine had its largest circulation.
The U.S. Supreme Court has yet to revisit the issue of personal jurisdiction in defamation cases in today’s Internet age. However, Walden, decided in 2014, concerned an intentional tort resulting from the DEA seizing cash in a Georgia airport from a Nevada resident. The Nevada resident sued the Georgia agent in Nevada claiming that the subsequent forfeiture action was based on a false affidavit, the effects of which were felt in Nevada. The court denied personal jurisdiction in Nevada, holding that it is the defendant’s actions, rather than the effects of those actions, that must create a “substantial connection” with the forum state for minimum contacts.
The California court of appeal decided that the Walden decision affected its personal jurisdiction analysis in the Burdick Internet defamation case. The appellate court found that the only conduct connecting Burdick with California was the Facebook post, and did not consider other acts in the larger “harassment scheme” in which Burdick’s post took place. The court held that Burdick’s knowledge that the harm from his post would likely be principally felt in California was insufficient. Rather, the court required “evidence the nonresident defendant expressly aimed or intentionally targeted his or her intentional conduct at the forum state.” The court has remanded the matter for discovery on whether Burdick expressly aimed his conduct at the forum state, rather than simply at the plaintiffs.
Posting with intent: what is “express aiming” in the Internet age?
To show “express aiming,” the Burdick court sought evidence that “either the Facebook page or the posting had a California audience”; that “any significant number of Facebook ‘friends,’ who might see the posting, lived in California”; or even that “the Facebook page had advertising targeting Californians.” But these questions point to the larger difficulty of locating an act of defamation committed over the Internet. For example, Facebook advertisements change depending on the reader; they are not static content on a poster’s “Facebook wall.” It is also unclear whether the poster has to be aware that the majority of his or her “friends” reside in a particular state. If the tort occurs anywhere that readers can access the defamatory remarks, people from out of state could potentially be brought into court based on conduct with no connection to the forum apart from the plaintiff’s location.
Precisely what conduct is “express aiming” over the Internet is hard to define. Here, Burdick referenced the plaintiff scientists’ purported loss of a California medical license and alleged criminal acts committed by the California residents. The court held that these facts alone were insufficient for “express aiming.” The Burdick court also cited many cases from around the country largely supporting the conclusion that posting defamatory statements on the internet with knowledge that the subject of the statements resides in a particular forum, and hence where the “effects” will be felt, does not create minimum contacts.
The conflict between the scientists and Burdick and Nerium is not over. The scientists leveled accusations that Nerium’s multi-level marketing scheme is a “pyramid” scheme and a “cult” in February 2015. Burdick is not off the hook in court either. The court of appeal remanded the matter for more discovery about Burdick’s conduct that could tie him to California. The “blogging scorpions” may yet have their day in court.