Suppose you live in Virginia and have been defamed on Facebook or Twitter by someone who lives in another state on the other side of the country. Can you file a lawsuit in Virginia, or do you have to sue in the state of the defendant’s residence? Many have tried to sue distant tortfeasors in Virginia on the theory that social-media posts can be read all over the world (including Virginia) and that the defendant knew his defamatory statements would cause harm to a person located in Virginia, but these lawsuits rarely succeed. It has become clear that to sue a person in Virginia in cases of Internet defamation, courts want to see a purposeful targeting of Virginia readers. Merely issuing a statement published to the entire world is not enough.
The relevant legal concept is that of “specific personal jurisdiction.” The court needs to have power to issue a judgment over another person, and to do so consistent with the United State Constitution, specific (or general) personal jurisdiction must be found to exist. In essence, the question is whether the defendant maintains sufficient “minimum contacts” with Virginia so a lawsuit filed against that person in Virginia would not offend “traditional notions of fair play and substantial justice.” The general idea is that it would not be fair to hale someone to court on the other side of the country if that person had no meaningful connections with that other state. Posting something on Facebook does not connect a person in any meaningful way with every state in the country.
To determine whether specific jurisdiction exists in a particular case, relevant considerations include:
- the extent to which the defendant purposefully availed himself of the privilege of conducting activities in Virginia;
- whether the plaintiff’s claims arise out of those activities directed at Virginia; and
- whether the exercise of personal jurisdiction would be constitutionally reasonable.
No clear formula exists for determining what constitutes “purposeful availment.” The Court, however, may consider
- whether the defendant maintains offices or agents in the forum state;
- whether the defendant owns property in the forum state;
- whether the defendant reached into the forum state to solicit or initiate business;
- whether the defendant deliberately engaged in significant or long-term business activities in the forum state;
- whether the parties contractually agreed that the law of the forum state would govern disputes;
- whether the defendant made in-person contact with the resident of the forum in the forum state regarding the business relationship;
- the nature, quality, and extent of the parties’ communications about the business transactions; and
- whether the performance of contractual duties was to occur within the forum.
The third prong of the specific-jurisdiction test–“constitutional reasonableness”–requires the court to examine other factors to ensure that exercising jurisdiction would not be unfair under the circumstances of the case. Under this prong, courts consider factors such as:
- the burden on the defendant of litigating in the forum;
- the interest of the forum state in adjudicating the dispute;
- the plaintiff’s interest in obtaining convenient and effective relief;
- the shared interest of the states in obtaining efficient resolution of disputes; and
- the interests of the states in furthering substantive social policies.
Merely causing injury to a Virginia resident is not a sufficient connection to Virginia to allow a nonresident to be sued here. To satisfy due process in an Internet defamation case, a Virginia court can only exercise judicial power over a nonresident when that person (1) directs electronic activity into Virginia, (2) with the manifested intent of engaging in business or other interactions in Virginia, and (3) that activity creates, in a person within Virginia, a potential cause of action cognizable under Virginia law. In essence, what is required is a purposeful targeting of Virginia readers, not just an intent to harm someone’s reputation in Virginia.
For a recent example, check out McNeil v. Biaggi Productions. According to allegations in the case, Richmond City police officer Centell Colonzo McNeil sent a series of texts to Juan Davila, a producer and distributor of gay porn, seeking technical advice on a carbine assault rifle he’d just purchased. McNeil alleges he thought he was contacting a gun-savvy friend he’d met in the National Guard, but that he somehow got a wrong number. When his texts weren’t answered, he initiated a FaceTime video call. Davila answered and when he saw an image of McNeil holding a gun, he captured several screen shots. McNeil says he identified himself as a police officer and explained he had a wrong number, but that Davila proceeded to commence a wide-ranging defamation campaign that included tweets, Facebook comments, a blog post, and complaints to both the FBI and the Richmond police. The gravamen of the defamation complaint was that the statements falsely accused McNeil of threatening to kill Davila.
Davila lives in Florida, but McNeil sued in Virginia.
The court dismissed all the claims based on statements posted to Facebook, Twitter, and the blog, reasoning that they “involve[d] online posts that were not expressly directed at Virginia, but to an undefined audience of Internet users around the world. While the Defendants featured McNeil as the subject of these posts and even referenced Virginia in some of them, nothing indicates that the Defendants specifically directed the posts at Virginia or to Virginia social media users.” The court allowed the case to proceed based solely on the allegation that the defendant made a defamatory statement to the Richmond Police. That alleged conduct, the court held, did amount to purposeful interaction with Virginia.
Posting defamatory statements on social media, without more, is not likely going to be sufficient to constitute “purposeful availment” of the privilege of conducting activities in Virginia, thereby “invoking the benefits and protections of its laws” as required by constitutional law. But if those statements indicate a purposeful targeting of readers in Virginia, it may be appropriate to sue that person here in Virginia, regardless of where the defendant lives.