In a recent defamation case where the defendant sought anti-SLAPP protection related to internet forum posts about the plaintiffs, a federal district court recognized that social-media speech is no different from “traditional” speech. See Piping Rock Partners, Inc. v. David Lerner Assocs., Inc., No. C 12-04634 SI (N.D. Cal. May 17, 2013) (Illston, J.).
“SLAPP” is an acronym for Strategic Lawsuits Against Public Participation, defined in Black’s Law Dictionary (9th ed.) as “a suit brought by a developer, corporate executive, or elected official to stifle those who protest against some type of high-dollar initiative or who take an adverse position on a public-interest issue, (often involving the environment”).
In doing so, the court tacitly acknowledged that in anti-SLAPP cases, some aspects of social-media speech can be helpful to consumer-defendants whereas other aspects can be helpful to corporate plaintiffs. This case should provide guidance to consumers and corporations in the over 25 states that have adopted anti-SLAPP statutes. e.g., Cal. Code Civ. Proc. § 425.16. A list of states with anti-SLAPP laws can be found at http://www.anti-slapp.org/your-states-free-speech-protection/ .
Piping Rock Partners involved some accusations posted on a consumer-reports internet forum. Defendant Dobbs posted that he bought property from the plaintiffs and that the plaintiffs had made certain representations about the property. These apparently factual statements were paired with Dobbs’s many opinions on the plaintiffs’ dishonesty. The problem for Dobbs, however, was that he never bought property from the plaintiffs. Unsurprisingly, the plaintiffs filed a libel action; Dobbs sought protection under the anti-SLAPP statute for making statements of public interest (i.e., warning the public about the plaintiffs’ business practices).
Helpful to consumer-plaintiffs, the court concluded that posts on internet forums qualify for protection as “an act in furtherance of the defendant’s rights of petition or free speech.” Such acts were defined under California’s anti-SLAPP statute as “any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest.” Consumer-defendants can thus meet their initial burden on an anti-SLAPP defense even if the speech occurred via social media and was false; this shifts the burden to the plaintiff to establish a likelihood of prevailing.
The falsity of the statements, however, goes directly to a plaintiff’s ability to show a likelihood of prevailing. Importantly, the court rejected Dobbs’s request to overlook the falsity of his statements because he made them on an internet forum, which courts and commentators have recognized are havens for hyperbolic speech and often invite exaggerations. Where the statement is verifiably false—even if made in a medium prone to hyperbole—a plaintiff can meet its burden.
Where does this leave consumers and corporations? Each has an arrow in its quiver in anti-SLAPP cases involving social media. For consumers, their online statements are protected in the same way as traditional speech. For corporations, defamation claims are still viable as long as the consumer makes verifiably false statements, even if made in a forum known for hyperbole.
This post was written by James V. Leito IV (james.leito@nortonrosefulbright.com / + 1 214 855 8004) a lawyer in Norton Rose Fulbright’s litigation practice.
