Article courtesy of Michael Robson (Greenberg Traurig)
Salfinger v. Fairfax Media Limited, 367 Wis.2d 311 (Wis. Ct. App. 2016)
In October 2010, the Sydney Morning Herald, published by the Fairfax parties, ran an article discussing the family behind the Yellow Tail wine brand. The article referenced Roderick Salfinger (“Salfinger”) and included a statement that he “faces prosecution in the United States after allegedly producing a revolver at his daughter’s wedding,” which Salfinger denied. The article was published in Australia but made available globally on the newspaper’s website. While the article did not mention Wisconsin, Salfinger had moved to Wisconsin shortly before publication and alleged that the article caused him personal, professional, and business harm there. Between 2011 and 2014, over 826,000 Wisconsin‑located users accessed the Sydney Morning Herald website. The website also displayed geographically targeted advertising, including Wisconsin‑specific ads, to users accessing the site from Wisconsin.
Salfinger filed suit in 2013 asserting defamation and related claims. The Fairfax parties moved to dismiss for lack of personal jurisdiction. The trial court had dismissed the case on the grounds that exercising jurisdiction would offend due process, despite finding that jurisdiction was authorized under Wisconsin’s long-arm statute, Wis. Stat. § 801.05(4)(b). Salfinger appealed the decision, arguing that the trial court erred in its due process analysis.
The case presented two issues: (i) whether the exercise of personal jurisdiction over the Fairfax parties is authorized under Wisconsin’s long-arm statute, Wis. Stat. § 801.05(4)(b); and (ii) whether exercising personal jurisdiction over the Fairfax parties comports with due process requirements.
The Court agreed with the trial court that Wis. Stat. § 801.05(4)(b) authorizes jurisdiction over the Fairfax parties because the allegedly defamatory article was “processed” and “consumed” in Wisconsin. Converting the article to an online format constituted “processing,” and Wisconsin users “consumed” the content through worldwide website access, satisfying the statute’s threshold. Applying a liberal construction of the long‑arm statute and the broad definition of “process” from Kopke and related authorities, the Court reasoned that taking a written article and preparing it for online publication, so it can be accessed globally, including in Wisconsin, falls within § 801.05(4)(b)’s “processed … and used or consumed” language. This step merely cleared the statutory gateway; the Court then turned to the constitutional question, underscoring that statutory reach alone does not end the inquiry.
The Court then analyzed whether exercising jurisdiction would comply with due process. The Court’s analysis of this issue involved two main inquiries: (i) whether the defendant purposefully established minimum contacts in the forum state, and if so, (ii) whether asserting personal jurisdiction would comport with fair play and substantial justice. The Court began its analysis by examining whether the Fairfax parties purposefully established minimum contacts with Wisconsin. The Court noted that Salfinger carries the burden of establishing these minimum contacts. The Court highlighted the following five factors in its due process analysis: (i) the quantity of the defendant’s contacts with the state; (ii) the nature and quality of those contacts; (iii) the source and connection of the cause of action with those contacts; (iv) the interests of Wisconsin in the action; and (v) the convenience to the parties of employing a Wisconsin forum.
The Court noted that the United States Supreme Court has emphasized that the relationship between the defendant and the forum state must arise out of contacts that the defendant itself created with the forum state. Salinger contended that the Fairfax parties established minimum contacts in the Wisconsin market through online advertising revenue from Wisconsin users, publication of a Wisconsin-targeted magazine, and online subscriptions to the Sydney Morning Herald by Wisconsin residents. However, the Court found that neither the publication of the Wisconsin Agriculturalist by a subsidiary nor the eleven Wisconsin subscriptions to the Sydney Morning Herald website established sufficient minimum contacts. The Court emphasized that the actions and presence of a non-party subsidiary are not sufficient for jurisdictional due process analysis.
The Court also then addressed Salfinger’s primary argument that the Fairfax parties established minimum contacts by placing an article into worldwide circulation on their website and profiting from Wisconsin-targeted advertisements. The Court held that merely placing an article online does not establish minimum contacts with Wisconsin, as the article does not mention Wisconsin or suggest any connection between Salfinger and Wisconsin. Furthermore, the Court examined the role of targeted advertisements, concluding that the Fairfax parties do not have a significant role in the specific Wisconsin-based advertisements appearing on the Sydney Morning Herald website. The advertisements are based on the user’s geographic location and interests, and the Fairfax parties do not proactively target Wisconsin users. Ultimately, the Court concluded that the Fairfax parties do not have sufficient minimum contacts with Wisconsin, and exercising jurisdiction would violate due process. Given that there were insufficient contacts with Wisconsin to establish personal jurisdiction, the Court did not address the second prong of the due process analysis, which considers whether exercising jurisdiction would comport with fair play and substantial justice.
Ultimately, the Court held that the Fairfax parties lacked sufficient minimum contacts with Wisconsin. Their only connections to the state flowed from the global accessibility of the internet, user‑driven website access, and automated ad placement controlled by third‑party platforms. Such attenuated and fortuitous connections do not satisfy the constitutional minimum contacts requirement. Having found the first prong of the due process analysis unsatisfied, the Court did not reach the second prong concerning fair play and substantial justice. The Court of Appeals therefore affirmed dismissal for lack of personal jurisdiction.
