Examination Whether Defendant's Website Was 'Passive' or 'Active' to Decide His Conduct and Exercise Personal Jurisdiction
In Whitney Information Network, Inc. v. XCentric Ventures, LLC, 347 F. Supp. 2d 1242 (M.D. Fla. 2004), the federal district court examined whether the defendant's website was "passive" or "active" in order to resolve the issue.
The difference between a passive website and an active website has been described as follows: "A passive web site only makes information available to those interested in viewing the web site in foreign jurisdictions whereas an active web site allows for those interested in foreign jurisdictions to enter into contracts over the Internet with the defendant." Miami Breakers Soccer Club, Inc. v. Women's United Soccer Ass'n, 140 F. Supp. 2d 1325, 1329 (S.D. Fla. 2001).
In Whitney, the plaintiffs filed a complaint for, inter alia, defamation, alleging that defendants operated a website, www.ripoffreport.com, the purpose of which was to publish consumer complaints, which the defendants actively solicited, and to imply that the company named in the complaint was "ripping off" consumers. 347 F. Supp. 2d at 1243.
The defendants also allegedly advertised items for sale and solicited donations from consumers. Id.
While on the www.ripoffreport.com website, a consumer could click on a link to a second website, www.ripoffrevenge.com, at which defendants sold either a service or do-it-yourself kits. Id.
The plaintiffs further alleged that the defendants published more than a dozen false stories about them and subjected them to false and defamatory articles. Id. at 1243-44.
The federal district court held that the complaint alleged sufficient facts to satisfy section 48.193(1)(b), stating:
While . . . Xcentric does not transact any business, have any agents in Florida, or maintain any offices in Florida, this is not determinative under Fla. Stat. 48.193(1)(b).
Its website " www.ripoffreport.com; allows consumers to target an individual state by inviting them to "Pick any state!" for information.
The website promises to contact individual consumers with certain information ("We will contact you if a lawsuit is being considered or has been filed which you may want to be a party to"), e-mail victims to contact other victims and attorneys interested in pursuing class action lawsuits, and to put consumers in contact with the media.
The website asserts that it has assisted, and continues to assist, many government agencies from around the country, and that many television stations "from all around the country" come to the Ripoff Report for information.
The website offers businesses the opportunity to file a rebuttal to any report it publishes.
The website ran at least nine reports concerning plaintiffs' activities in Florida, and specifically solicited information from the named business in a "Rebuttal Box" on the website.
The website sold advertising space, and solicited advertisers with reduced rates and a feature which allowed them to "Pick any state!" In an example of its advertising service, the website specifically referred to advertising business in Florida and the presence of reports from Florida. Id. at 1244-45.
The Court concluded that these facts were sufficient to satisfy the Florida long-arm statute, reasoning that "the activity takes defendants' conduct beyond a mere passive website, and allows the Court to exercise personal jurisdiction." Id. at 1245 (citing Toys "R" Us, Inc. v. Step Two, S.A., 318 F.3d 446 (3rd Cir. 2003); Northwest Healthcare Alliance, Inc. v. Healthgrades.com, Inc., 50 F. App'x. 339 (9th Cir. 2002)).