Zippo-Dee-Do-Dah

We’ve been skeptical in the past about the continuing viability of the so-called Zippo test for personal jurisdiction, which dates from the dawn of the Internet and relies heavily on whether a website is “passive” or “interactive” to determine whether there are sufficient contacts with the forum. Now that nearly every website is “interactive,” the test places any online presence in danger of jurisdiction everywhere the Internet is accessible (so, everywhere). For this reason, retailers find themselves sued in the distant corners of Texas.

It seems like at least one district judge agrees. In Larada Sciences, Inc. v. Pam Skinner d/b/a Professional Lice Solutions et al., the District of Utah was heavily critical of the Zippo test in granting a motion to dismiss:

“The weakness of the Zippo approach becomes ever more apparent in today’s digital age. The ability to create and maintain an interactive website is no longer the sole domain of technologically sophisticated corporations. Virtually all websites, even those created with only minimal expense, are now interactive in nature. It is an extraordinarily rare website that does not allow users to do at least some of the following actions: place orders, share content, “like” content, “retweet,” submit feedback, contact representatives, send messages, “follow,” receive notifications, subscribe to content, or post comments. And those are only interactions immediately visible to the user. In fact, most websites also interact with the user “behind the scenes” through the use of cookies. Thus, even a website that appears passive in nature may actually be interacting with the user’s data and custom-tailoring the content based on the user’s identity, demographics, browsing history, and personal preferences. In addition, there is an ever-increasing amount of internet contact that is done through the use of mobile apps that bypass the traditional website altogether. This increase in mobile computing allows entirely new interactions. These applications routinely send notifications, are location based, and share data with other applications.

Furthermore, maintaining an interactive website is no longer the sole purview of corporations. In fact, with the invention of social media, many individuals, to say nothing of organizations, maintain an interactive website. In a matter of minutes, an individual can create a Facebook account and upload content to his or her own “Facebook page.” That page may allow all other Facebook users to interact with it. The level of interactivity on even the most basic Facebook page arguably exceeds that of even the most interactive website in 1997 when Zippo was decided. It is difficult to envision a website that is more interactive than the average Facebook page. Indeed, a principal purpose of social media is to facilitate interactions between users.

Given the exponential growth in the number of interactive websites, the Zippo approach—which would remove personal jurisdiction’s geographical limitations based on the mere existence of those websites—is particularly troubling. And the problem would grow more acute every year as more individuals and businesses create interactive websites.”

Well said.