Website Cases Survey Result: The Zippo Decision is Still the Leading Case - If the Decision is Used Faithfully

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 involving websites; and where the first eliminating factor has been whether the court based its decision also upon other 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 a three-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 reality doing business online; whereas cases not reaching this requirement on the survey's formulated gliding scale 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 not been the only determining factor for exercising personal jurisdiction. Then the case is just based on the same 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 level on the gliding scale is reached, seem to have been followed by all other courts that also decided to exercise personal jurisdiction.

Thus, on basis of the survey, the Zippo decision is still the leading case - if the decision is used faithfully, 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 facts are involved and an alien defendant is involved.

Keywords: Cyberspace, Internet, websites, personal jurisdiction, Public International law

JEL Classification: K33, K39, K40