Defamatory Social Media Posts About California Residents Don’t Necessarily Subject the Defamer to Personal Jurisdiction in California
in Civil Litigation by Stephen Raucher
The brave new world of social media represents a challenge to courts trying to apply traditional notions of personal jurisdiction. This was highlighted in the recently published case Burdick v. Superior Court (Cal. Ct. App., Jan. 14, 2015) 15 Cal. Daily Op. Serv. 478, in which the Fourth Appellate District of the California Court of Appeal held that an Illinois resident who posted allegedly defamatory statements on his public Facebook page about Orange County residents was not subject to specific personal jurisdiction in California state court.
Plaintiffs, John Sanderson and George Taylor (“Plaintiffs”), residents of California, sued Douglas Burdick (“Burdick”), an Illinois resident, alleging that Burdick published defamatory statements on his Facebook page. Burdick was a consultant for Nerium International (“Nerium”), a skin care product company. Plaintiffs were bloggers who questioned the science behind Nerium’s products in various blog articles regarding Nerium’s products and marketing. In response, Burdick posted material on his public Facebook page regarding a “Blogging Scorpion” who “lost his medical license…uses multiple social security numbers…[and]…has been charged with domestic violence.” The post instructed readers to “Stay tuned as we reveal the ‘REAL’ truth behind this ‘Blogging Scorpion.’” In his post, Burdick did not specifically mention either of Plaintiff’s names, but repeatedly referred to a “Blogging Scorpion.” Plaintiffs subsequently filed suit in California state court.
Burdick filed a motion to quash service of the summons based on a lack of personal jurisdiction. Burdick claimed that he was a resident of Illinois and that he “has never lived in California; maintained an office or been employed in California; had a bank account, safe deposit box, or mailing address in California; owned or leased real property in California; had employees in California; been a party to a contract with a person or entity in California; or held any licenses or certifications issued by any governmental agency or unit in California.” Plaintiffs opposed Burdick’s motion by claiming that the post was on a “publicly-available Facebook wall.”
The trial court denied Burdick’s motion to quash, citing the “effects” test for personal jurisdiction in Calder v. Jones, 465 U.S. 783, 789 (1984). Burdick filed a writ petition challenging that ruling. Although the Court of Appeal summarily denied the writ, the California Supreme Court granted review and transferred the matter back to the Court of Appeal with directions to reconsider the denial in light of Walden v. Fiore, 571 U.S. _ [134 S.Ct. 1115] (2014). The Court of Appeal then reversed the trial court’s denial of Burdick’s motion to quash. The Court held that even though the post revealed that Burdick knew that Plaintiffs resided in California, there was no evidence that the post targeted California, as opposed to just the Plaintiffs.
The Court’s reasoning focused on whether Burdick’s out of state intentional conduct created the necessary “minimum contacts” with California so as to justify jurisdiction. The court identified Burdick’s contact with California as “the allegedly defamatory posting on his Facebook page.” The “effects test” is one way California and federal courts have assessed whether a nonresident’s intentional torts create the necessary contacts with a forum state. In making its decision, the Court relied on three influential cases interpreting the “effects” test: (1) Calder ; (2) Pavlovich v. Superior Court, 29 Cal.4th 262 (2002); and (3) Walden.
In Calder, Shirley Jones, a prominent actress in California, sued the National Enquirer for libel in California state court. (Calder, supra, 465 U.S. at pp. 784-786.) The National Enquirer, headquartered in Florida, moved to quash service of process. (Id.) The United States Supreme Court held that jurisdiction in California was proper because the “effects” of the libelous story were felt in California. (Id. at p. 789.) The Calder court stated that the libelous story “impugned the professionalism of an entertainer whose television career was centered in California,” that the intentional acts “were expressly aimed at California,” and that the defendants “knew that the brunt of that injury would be felt by respondent in the State in which she lives and works and in which the National Enquirer has its largest circulation.” (Id. at pp. 788-789.)
Distinguishing Calder, the Burdick court held that unlike the National Enquirer’s article, the Facebook post at issue did not substantially connect Burdick to California. The Court stated that the National Enquirer’s article satisfied the “effects” test because the article was “specifically about an actress living in California with a California-based movie…[with]…largest circulation in California.” In particular, the National Enquirer had its largest subscription basis, over 600,000 circulations, in California. (Calder, supra, 465 U.S. at pp. 784-786.) This was unlike Burdick’s Facebook post, which the Court stated did not have any significant number of readers in California.
The Court also relied on Pavlovich, a California Supreme Court case decided after Calder, in which the Court stated narrowed Calder’s scope and required that intentional acts be “expressly aimed” at the forum state. In Pavlovich, the California Supreme Court held that an Indiana resident with no contacts in California was not subject to personal jurisdiction in California. (Pavlovich, supra, 29 Cal.4th at pp. 266.) The defendant in that case was alleged to have misappropriated plaintiff’s trade secrets on a public Web site. (Id. at pp. 266-267.) The Pavlovich court found no jurisdiction because the only evidence of “express aiming” was defendant’s knowledge that his conduct “could harm industries centered in California.” (Id.) The Pavlovich court held that personal jurisdiction requires “evidence of express aiming or intentional targeting.” (Pavlovich, supra, 29 Cal.4th at p. 273). Although Pavlovich was not a defamation case, the Burdick court found that its reasoning was applicable to the issue of whether Burdick’s Facebook post was expressly aimed at California. Citing cases interpreting Calder, the Court stated that a mere Internet post does not confer nationwide personal jurisdiction without something more connecting the post to the forum state.
Finally, the Court relied on the recent United States Supreme Court case Walden, which further expanded on Calder and personal jurisdiction for intentional torts. In Walden, the defendant was a police officer in Georgia who allegedly helped to draft a false affidavit at the Atlanta airport for purposes of prosecuting travelers in Georgia. (Walden, supra, 571 U.S. _ [134 S.Ct. at pp. 1119-1120.) The traveling plaintiffs, residents of California and Nevada, sued the police officer in Nevada. (Id.) The United States Supreme Court held that Nevada did not have personal jurisdiction over the police officer because his conduct did not “create a substantial connection with the forum state.” (Id. at p. __, [134 S.Ct. at p. 1121-1122]). Although the police officer knew that his actions harmed Nevada residents, the United States Supreme Court held that minimum contacts must be with the forum state itself, and not the persons who reside there. (Id.) The Walden court discussed the Calder “effects” test and stated that the libelous article in Calder had “reputation-based ‘effects’” that connected the National Enquirer to the state California and not just the actress. (Id.) Because libel requires publication to third persons and because the National Enquirer had its largest circulation in California, the article had a devastating impact in California, and not just on the actress. (Id.)
Relying on Calder, Pavlovich, and Walden, the Burdick court established that the proper analysis for jurisdiction assesses 1) the defendant’s contacts with the forum, not with the plaintiff, and 2) whether the contacts form a meaningful relationship between the defendant, the forum, and the litigation. The Court stated that under Walden, the “effects” test is not concerned with the location where plaintiff experienced an injury, but whether defendants actions connect defendant to the forum. Merely posting negative comments about a plaintiff on the Internet, knowing that the plaintiff is from the forum state is not enough. The conduct has to be “expressly aimed or intentionally targeted…at the forum state.”
Burdick’s act of posting defamatory comments on his Facebook page while in Illinois did not have a “California focus,” like the National Enquirer’s publication had in Calder. Although Burdick’s Facebook wall was “publicly-available,” as Plaintiffs claimed, there was no evidence that it targeted California because the post was accessible from every state in the country, and not just California. However, the Court held that on remand, Plaintiffs should be given the opportunity to conduct jurisdictional discovery to see if they could obtain evidence that the defendant’s activity was targeted at California.
Burdick v. Superior Court represents an important step forward in clarifying the application of traditional concepts of personal jurisdiction in the Internet Age.