Photo Attorney

Feb 23, 2007

Does Your Web Site Expose You to Liability Elsewhere?

Many photographers advertise their services and photos on the Internet. So if you sell a print to someone who lives across the country from you, can you be sued in that person's state? It depends.

Whether you can be sued in a state depends on whether the court there has jurisdiction over you. "Due process" under the Constitution requires that you have sufficient "minimum contacts" with the state to be sued there. What qualifies as minimum contacts varies a bit by state and is often a judgment call by the court. Does soliciting for photography work via the Internet meet that threshold?

This issue recently was considered by an appellate court in California. A used car dealer in Florida advertised a car for sale on the Internet and sold it to a California resident. The court applied its sliding scale of jurisdiction via the Internet as first stated in the Pavlovich v. DVD Copy Control case.

There, the court held:

At one end of the spectrum are situations where a defendant clearly does business over the Internet. If the defendant enters into contracts with residents of a foreign jurisdiction that involve the knowing and repeated transmission of computer files over the Internet, personal jurisdiction is proper.

At the opposite end are situations where a defendant has simply posted information on an Internet Web site which is accessible to users in foreign jurisdictions. A passive Web site that does little more than make information available to those who are interested in it is not grounds for the exercise [of] personal jurisdiction.

The middle ground is occupied by interactive Web sites where a user can exchange information with the host computer. In these cases, the exercise of jurisdiction is determined by examining the level of interactivity and commercial nature of the exchange of information that occurs on the Web site.

In the used car case, the court found that the dealership's passive Internet advertisements and few car sales to the state did not qualify as minimum contracts. It was important to the court's consideration that the car dealer's web site was not interactive, no files were exchanged via the web site, and the web site did not target California residents specifically.

When you choose to advertise your services via a web site, be careful how you solicit your work or you may find yourself defending a lawsuit in some place far from your home.

Take my advice; get professional help.

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