The following article was first published in The Lawyers Weekly. To access a full copy of this article, please contact John Sullivan.
December 2002 was one of the most important months ever for the developing law of jurisdiction over Internet activity. Within three days of each other, two influential appellate courts — the High Court of Australia and the U.S. Court of Appeals (Fourth Circuit) — released groundbreaking decisions on Internet jurisdiction, with different conclusions. The Australian decision, Dow Jones v. Gutnick,  H.C.A. 56 appears to be the first time a national supreme court in a common law jurisdiction has rendered a detailed decision on the subject. The U.S. decision, Young v. New Haven Advocate,  CA4 – QL 2856, is the latest in a line of influential U.S. appellate decisions dealing with this question dating back to the well-known Zippo.com decision of 1997. However, they demonstrate two different philosophies on Internet jurisdiction — plaintiff- focused (Gutnick) and defendant- focused (Young).
Both involved applications to dismiss defamation actions brought against out-of-state Internet publishers based on lack of personal jurisdiction. In Gutnick, the court held it had jurisdiction over the publisher based on the alleged harm the plaintiff suffered in his home jurisdiction. But in Young, that same argument was rejected, and the court held that a Virginia court could not constitutionallyexercise jurisdiction over the out-of-state Internet publishers,due to a lack of “minimum contacts” between the defendants and Virginia. Gutnick focused on the substantive elements of the tort of defamation while Young gave deference to the nature of the Internet and the concept of “targeting.