Modern communication has been transformed by ubiquitous social media platforms and near-universal connectivity. Any individual, from any location, can now publish speech to thousands or potentially millions of readers, viewers, or listeners via Twitter, Facebook, Instagram, Snapchat, YouTube, and other social media platforms. For this reason, defamation claims based on social media content are increasingly common. Unfortunately, courts considering these suits lack clear and consistent rules for when a social media post satisfies “minimum contacts” and “fair play and substantial justice,” the due process requirements for exercise of personal jurisdiction over a nonresident defendant. This Comment clarifies minimum contacts analysis in social media defamation cases by: (1) suggesting a standardized approach to the Calder v. Jones effects-based personal jurisdiction analysis in social media defamation cases, and (2) identifying “markers” for finding minimum contacts based on social media posts alone. In defamation cases, the most common framework for personal jurisdiction analysis is the “effects” or “expressly-aiming” framework of Calder v. Jones. The Supreme Court clarified Calder’s requirements in Walden v. Fiore but did not clarify what contacts would be constitutionally sufficient in an online defamation case. Currently, courts employ two main approaches to Calder analysis in online defamation cases. This Comment identifies these as “audience-focused” and “content-focused” approaches. Because these two approaches can lead to divergent results when applied to the same facts, the audience-based approach (typified by the Fourth Circuit’s “targeting” test) should be abandoned in favor of a content-based approach like the Fifth Circuit’s. However, courts should not adopt the Fifth Circuit’s approach unchanged but should use an objective, text-based analysis. Also, courts should reject the “brunt of the harm” standard used by several circuits in favor of the Ninth Circuit’s sufficient harm standard. Regardless of which approach to Calder is used, only rarely will social media contacts alone provide constitutionally sufficient minimum contacts with a forum state. This Comment suggests, for the first time, three “markers” that may indicate these rare cases. One marker is “doxing” or “doxxing,” in which social media users provide identifying personal information about a victim. Direct doxing, not sharing or retweeting, is required. A second marker is the use of “hashtags,” “tagging,” “shoutouts,” or “mentions,” indicated by use of the “@” or “#” symbols. A final marker is the use of social media platforms with an inherent geographic focus, like TripAdvisor, Yelp, or Nextdoor. While full Calder analysis will be required to confirm whether exercise of personal jurisdiction is consistent with due process, looking for these markers will help courts quickly identify situations where finding personal jurisdiction is most likely.
Ellen Smith Yost,
Tweet, Post, Share. . .Get Haled into Court? Calder Minimum Contacts Analysis in Social Media Defamation Cases,
SMU L. Rev.