The rise of mass communication has led to an exponential increase in the number of people wanting to communicate as well. As a result, the extent of various apps and platforms that cater to the varying needs of consumers is on the rise. Although cyberspace may seem like an electronic realm, its authors can be held accountable for their messages in a courthouse.

In terms of jurisdiction, where does Internet dispute jurisdiction lie? Many of the more supportive answers are now superseded by more realistic tests.

Another question that hits the headlines is the personal jurisdiction assessed for cases of cyber torts and defamation. Personal jurisdiction is the court’s jurisdiction over a person. This principle applies to both parties in a dispute.

During the late 90s, many courts seemed to have no idea how to apply the concept of jurisdiction when it came to Internet domain names. One particular case that baffled the courts influenced them to evaluate the issue of purposeful advantage through established Internet-based contact with the citizens of the forum state. This concept created a quarrel among Zippo Mfg. Co. v. Zippo Dot Com and the District Court of Pennsylvania.[1]

To evaluate the issue of Internet-based personal jurisdiction and assess the defendant’s demeanour in initiating interaction over the Internet, the District Court articulated a new measure; the Zippo Sliding Scale Test. The Zippo Sliding Scale test is a three-prong test established by the United States District Court of Western District of Pennsylvania to establish jurisdiction over a website.

Favourably, in 1997, the activities of a defendant were divided into three categories: active, passive, and interactive. The decision offered some relief to those who used the Internet maliciously.

  • Active: a defendant who uses the Internet to set foot in the foreign jurisdiction agreements that entail sharing computer files electronically. In this scenario, the accused is subjected to jurisdiction in the locations its actions were malicious.
  • Passive: The websites that are didactic and do not seek any interaction in the outstretched locations. The owners are not held accountable or accused of any hostile action in those locations.
  • Interactive: These websites are entitled as the ‘middle ground’ by Zippo Dot Com. In this case, the user is allowed to interact and exchange files with the host computer. The jurisdiction is regulated by speculating the levels of interactivity and the trading nature of information shared on the website.

Many courts then implied this strategy to systemize Internet-based contacts and categorize them differently from other references. The test was applied to various cases that revealed even a hint of similar Internet-based- activities.

In cyberspace, the Zippo Test has been prominent in matters of Internet Jurisdiction. Many courts attempted to adopt the Zippo Test to reject and criticize it after. It was condemned for the levels of interactivity and materialism. Although the courts quote the Zippo case often, the sliding scale test mentioned in the case is being practised at an inconsistent rate. Moreover, the technological advances instilled various empirical changes that confounded Zippo and its lineage as to what extent the judgments needed to be altered to address the issue.

In addition, the Zippo Test has faced many challenges and accusations over its hasty foundation and for disrupting the concept of personal jurisdiction. It has also been held liable by many for being an awry addition to the existing base of an entity. Many experts and scholars indicated the need for alternatives to the Zippo test; the reason being its universal approach for all Internet conflicts; be it hacking, copyright infringement, debt collection issues, privacy, defamation, or breach of contract. The traditional commercial contract standards were entitled as a better approach in dealing with business hiccups that originated from e-commerce. Another issue arises with the targeting cases when the chief aspect of the Zippo test in testing a domain’s levels of interactivity becomes trivial.[2]

In conclusion, the Zippo Sliding Scale Test came into practice as the Federal District Court’s response to the tension created among entities and their cyberspace relations with the citizens of Forum State. These contacts will bite the dust during the test of acquiring minimum contacts as Internet-relations can spread widely. Therefore, the purposeful availability becomes spectral. Furthermore, the Zippo test, developed by many scholars, cyber lawyers, and courts, is advisable to be integrated with other principal models such as the ‘effects test’ and then set in motion.

This approach diminishes the possibility of failure while appraising the online conduct outside the forum and proves to be a panacea in the  matters relating to the jurisdiction of the Internet.




Author – Mr. Shrey Madaan, Researcher, CyberPeace Foundation
Reviewed – Mr. Hrishikesh Bedi, Consultant, CyberPeace Foundation

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