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Slander On The Internet: No Prevention And Little Cure

So you are a sole proprietor, a contractor, a professional, or just anybody who values his good reputation. Then some disgruntled customer posts a message on a website; for example, 'Yelp.' The message says: "This guy is the worst [whatever] in the world. He doesn't know what he's doing. He uses poisonous materials. Avoid him like the plague." You discover the posting, and you are understandably enraged. Your immediate reaction is: "I am going to sue his *.*." [Hint: Omitted word ends with a double "s" and does not necessarily refer to a mule-like animal. We are polite on this site.]

If you follow your impulse, beware. Your path leads steeply uphill.

Soon after you file your complaint against the poster and the website, your attorney receives an anti-SLAPP motion. This is a motion filed for the purpose of having your complaint dismissed under a unique California statute designed, and I would add badly designed, to eliminate lawsuits filed in retaliation for someone's exercise of free speech. The letters SLAPP stand for strategic lawsuits against public participation.

To summarize greatly, a motion under the statute will succeed only if, first, the statements at issue involve "protected speech" under the First Amendment and, second, if your complaint appears likely to prove unsuccessful under the law. The court may award attorneys' fees against the party filing the motion if he loses.

I am going to talk about the first part of that test. Discussing the second would involve a long explanation of the law of defamation in California, and I have space to touch upon only a few high and low points here.

Back to the message that got you started in the first place: You may be surprised to learn that it falls under the mantle of "protected speech." To begin with, it is now past dispute that the Internet represents a "public forum." Any speech concerning any "public issue" conducted on a "public forum" receives protection as the exercise of a right to free speech. The real debate then is over what constitutes a "public issue."

According to the appellate courts, or at least the Sixth District Court of Appeal sitting in this County, everything stated in the message that publicly decimated your reputation constitutes "protected speech." According to Ripley, believe it or not. This is the result because the test for the existence of a "public issue" is tremendously liberal. The message will meet the test if, first, the posting on the Internet goes beyond a merely private spat between the two parties and, second, the message implicates matters of public concern that can affect many people. This latter criterion invites a subjective decision. It leaves a judge with the power to decide when the public is concerned, without however identifying who makes up the public, and also to define a "concern" held by people whom the judge has never spoken with.

Under the part of the message telling the public that you are incompetent and should be avoided like the plague remains protected speech because it helps the public select someone else (obviously not you) in the same line of business. It becomes supposedly valuable "consumer information." The part of the message about your using poisonous materials qualifies as protected speech because it becomes part of a debate over poisons, obviously a concern to anyone who values his life.

I am not making this up. There are actually appellate decisions that say so. One such decision is a recent one in the Sixth District concerning a dentist who supposedly chose to fill a child's cavity with an amalgam containing mercury without advising the parent. There is another earlier decision in the Sixth District concerning a posting identifying the "Top Ten Dumb Asses" (now you know the word I skipped). The court held that being called a "dumb ass" was not defamatory because the statement involved "no provably false factual assertion." If any of you knows what that means in real life, please reply and tell me.

To be fair, although you may have lost on the first part of the test for the anti-SLAPP motion, you still may qualify under the second part of the test by having a legally sufficient complaint for defamation. But your path continues uphill. You face the formidable defenses that the message represents a mere statement of opinion by the poster, again protected by the First Amendment. You also face a defense that the message does not contain any factual statement, much less a false one. And even if you get past those you face the difficulty of proving damage to your reputation amongst some definable group of customers or potential customers. You may get justice in the end, but at further great cost to your nervous system and bank account.

What other choices do you have? Demand a retraction by the poster on the same site. Demand that the host of the website remove the slanderous message. If both of those fail, counter the message with one of your own or, even better, with many glowing messages from your faithful followers. The one saving grace possessed by the Internet is, as I see it, the existence of so much conflicting, nebulous information so as to make all of it nearly meaningless.

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