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.