The Supreme Court of Florida, answering a question certified by the Eleventh Circuit Court of Appeals, recently held that posting defamatory material on a website about a Florida resident does constitute the commission of a tortious act within Florida for purposes of the State’s long-arm statute, section 48.193(1)(b), Florida Statutes, if the material on the website is accessible in Florida and is accessed by a third party in Florida.

In Internet Solutions Corporation v. Tabatha Marshall (.pdf), the defendant, Tabatha Marshall, a resident of the State of Washington, owned and operated a website on which she posted about consumer-related issues.  Plaintiff, Internet Solutions Corporation (“ISC”), was an employment and recruiting firm whose principal place of business was in Florida.  ISC filed a defamation action in federal court alleging that Marshall posted statements on her website claiming that ISC was engaged in certain ongoing criminal activity.  Marshall moved to dismiss the complaint for lack of personal jurisdiction on the basis that she had not committed a tortious act in Florida for purpose of Florida’s long-arm statute and that even if ISC could satisfy the long-arm statute, subjecting her to personal jurisdiction would violate her due process rights.  The district court ruled that Marshall was subject to personal jurisdiction under Florida’s long-arm statute, but determined that the exercise of jurisdiction under the circumstances would violate due process.  The complaint was dismissed. 

On appeal, the Eleventh Circuit Court of Appeals recognized that the Florida Supreme Court had yet to address whether the posting of defamatory information on an out-of-state website about a Florida resident would meet the statutory requirements for long arm jurisdiction.  It, therefore, certified the following question (as rephrased by the Florida Supreme Court):

DOES A NONRESIDENT COMMIT A TORTIOUS ACT WITHING FLORIDA FOR PURPOSES OF SECTION 48.193(1)(B) WHEN HE OR SHE MAKES ALLEGEDLY DEFAMATORY STATEMENTS ABOUT A COMPANY WITH ITS PRINCIPAL PLACE OF BUSINESS IN FLORIDA BY POSTING THOSE STATEMENTS ON A WEBSITE, WHERE THE WEBSITE POSTS CONTAINING THE STATEMENTS ARE ACCESSIBLE AND ACCESSED IN FLORIDA?

As the Supreme Court of Florida recognized, Florida’s long-arm statute, first enacted in 1973, has not been amended by the Florida Legislature to specifically consider the impact of the explosion of the World Wide Web on personal jurisdiction under the State’s long-arm statute.  Although there have been cases construing Florida’s long-arm statute in the context of telephone calls, letters, e-mails, chat rooms, and facsimiles, Florida courts have not specifically dealt with the unique issue of allegedly defamatory comments being posted on a website – until now.  

When determining whether a nonresident is subject to personal jurisdiction, a two-step inquiry must be made.  First, it must be determined that the complaint alleges sufficient jurisdictional facts to bring the action within the ambit of Florida’s long-arm statute.  This first step — the “statutory prong” — bestows broad jurisdiction on Florida courts.  The second inquiry is whether sufficient “minimum contacts” are demonstrated to satisfy due process requirements.  This second step — the “constitutional prong” — is more restrictive and is controlled by United States Supreme Court precedent interpreting the Due Process Clause. 

The Court’s first prong analysis started by noting that the question of whether a posting on a website, which is located on the World Wide Web, constitutes an electronic communication into Florida is a more difficult one than telephone calls, e-mails, chat rooms, and facsimiles because the posting is typically accessible from any state and is not directed by the alleged tortfeasor into a particular forum in the same way as a phone call, letter, e-mail, chat room, or facsimile.  The Court concluded that allegedly defamatory material about a Florida resident placed on the Web and accessible in Florida does constitute “an electronic communication into Florida” when the material is accessed in Florida.  In the context of the Web, an alleged tortfeasor who posts allegedly defamatory material on a website has intentionally made that material “instantly available everywhere the material is posted” and has directed that material about a Florida resident worldwide, including to potential readers in Florida.  If the posting is accessed by a third party in Florida, it has been “published” in Florida and the poster has communicated the material “into” Florida, thereby committing the tortious act of defamation within Florida.

Because the certified question in Internet Solutions Corporation v. Marshall involved only the first prong of the personal jurisdiction analysis, the Supreme Court of Florida declined to address whether, under the specific circumstances of the case, the exercise of personal jurisdiction over the nonresident defendant under Florida’s long-arm statute violated her due process rights.  That battle will surely be fought another day.