Determining Jurisdiction In Cyberspace: The "Zippo" Test or the 'Effects" Test?

Abstract

Engaging in online activity is no longer a novel experience yet, there are many unresolved issues remaining in determining jurisdiction over the person which is a fundamental legal threshold in order to pursue one's legal rights. Two principal models for testing jurisdiction have moved to the forefront. One is the “Zippo test,” after the case in which it was first articulated which bases jurisdiction over a nonresident website on the degree of interactivity between the website and the forum. This test has been found by cyberlawyers, scholars and many courts to be inexact and therefore not particularly helpful. Consequently, the "effects" test has evolved which focuses on the effects intentionally caused within the forum by a defendant’s online conduct outside the forum. After summarizing the background and evolution of both the Zippo and effects tests, this article demonstrates that the courts are not embracing the effects test as a panacea to the dilemma of determining jurisdiction, but rather a combination of both the Zippo and the effects test is being employed. Oftentimes a court will begin its case analysis of with the Zippo test but completes the jurisdictional determination using the effects test. It is therefore advisable for attorneys advocating jurisdiction to use both tests, since the effects test may work where the sliding-scale of Zippo might not.