Social media engagement is a key part of brand building and consumer-directed marketing in today's media environment. Surveys indicate that 65 percent of consumers are interested in engaging with brands on social media.
In many metrics, marketing efforts on social media now outpace those through more traditional channels, such as television. The effectiveness of social media engagement has hardly been lost on industry: There are more than 10 million active advertisers on Facebook alone.
But can those tweets and posts open a business up to litigation in unexpected venues? The United States Court of Appeals for the Sixth Circuit recently had the occasion to take up this question in Blessing v. Chandrasekhar.
The dispute arose out of the widely circulated January 2019 video of students from Covington Catholic High School in Kentucky in an altercation with a Native American activist in Washington, D.C. After viewing this video, California resident and My Life on the D-List star Kathy Griffin and New Jersey physician Sujana Chandrasekhar posted about it on Twitter and encouraged their followers to identify the students.
The students sued Griffin and Chandrasekhar in the Eastern District of Kentucky alleging several causes of action under Kentucky state law. Griffin and Chandrasekhar moved to dismiss the matter, arguing lack of personal jurisdiction. The district court dismissed the complaint for lack of personal jurisdiction without prejudice and the plaintiffs appealed.
The Sixth Circuit affirmed the district court dismissal, rejecting plaintiffs' argument that defendants' "allegedly tortious postings on social media" could subject them to personal jurisdiction in Kentucky under either the Kentucky long-arm statute or the Due Process Clause. The court's opinion emphasized how "[t]here [was] no evidence that the defendants posted the tweets hoping to reach Kentucky specifically as opposed to their Twitter followers generally." In other words, without proof that the defendants intended to "direct any communications to the plaintiffs or anyone else in Kentucky, and they did not otherwise avail themselves of the benefits and protections of Kentucky's laws," personal jurisdiction over them was improper.
Federal courts have wrestled with the question of how traditional contacts-based personal jurisdiction doctrine should account for internet activity for decades now. Blessing does not provide the final answer to that question, but it does provide some important guidelines for companies considering their social media marketing strategies. Put simply: Engaging with an audience likely does not rise to the level of minimum contacts necessary to create jurisdiction, but engaging with an individual--and thereby directing activity to the location where that individual lives--may well.
In an age where customers expect their individual concerns voiced on social media to be quickly addressed on social media, this presents businesses with significant cross-pressures between their business interests and their legal interests. It also counsels caution for businesses in designing their overall social media marketing strategies: Directing those efforts at particular states may open the business up to personal jurisdiction in those states that would not otherwise exist. All of this points to the need for businesses to ensure that their legal departments and outside counsel are in the loop on social media efforts, in order to avoid unwanted entanglements.