Civil Procedure
Jurisdiction – Due Process
Salfinger v. Fairfax Media Ltd., 2016 WI App 17 (filed 20 Jan. 2016) (ordered published 24 Feb. 2016)
HOLDING: Jurisdiction was authorized by statute, but the circuit court properly found that asserting jurisdiction would offend due process.
SUMMARY: Plaintiffs sued various defendants in Australia and New Zealand for false and defamatory statements that appeared on a publication’s website. Salfinger resided in Wisconsin but asserted that the Web-based articles harmed him professionally and personally. The circuit court granted the defendants’ motion to dismiss for lack of personal jurisdiction, ruling that while Wis. Stat. section 801.05(4)(b) allowed jurisdiction, the defendants’ contacts were “too insubstantial” to satisfy due process (¶ 10).
Prof. Daniel D. Blinka, U.W. 1978, is a professor of law at Marquette University Law School, Milwaukee.
Prof. Thomas J. Hammer, Marquette 1975, is a law professor and Director of Clinical Education at Marquette University Law School, Milwaukee.
The court of appeals affirmed in an opinion authored by Judge Curley. The long-arm statute covers both general personal jurisdiction and, as asserted here, specific personal jurisdiction based on defendants’ contacts (see ¶ 12). The parties did “not actually dispute” that Wis. Stat. section 801.05(4)(b) authorized jurisdiction (¶ 16). Much of the analysis turns on the term “processed” as relates to a Web-based advertiser (¶ 20).
Turning to due process, the court held that there were insufficient contacts to warrant personal jurisdiction. Neither the publication of a Wisconsin-based magazine by the defendants’ subsidiary nor 11 online subscriptions to the offending online publication itself were sufficient – “alone or together” (¶ 26). For example, the online subscriptions did not begin until two years after publication of the article at issue (see ¶ 30).
The plaintiffs’ principal argument was that sufficient contacts were created when the defendants placed “into worldwide circulation” an article on a website that generated “Wisconsin advertisements that appear to Wisconsin users accessing the website” (¶ 31). Applying various approaches (for example, stream of commerce) to determining minimum contacts, the court found the contacts lacking. A Web-based article is “accessible anywhere in the world with an internet connection…. [M]erely placing an article online on an Australian newspaper’s website, particularly where the article does not even mention Wisconsin, fails to evince any connection with or conduct in Wisconsin” (¶ 37).
The court also plunged into the technicalities involved when parties use cookies to target local advertising, as they did here. The record showed no “proactive” steps by defendants to target Wisconsin Internet users; rather, the cookies “are simply based on the user’s geographic location and interests” (¶ 50).
