Businesses and executives are increasingly suing individuals who exercise their First Amendment rights by posting messages on review sites, Internet financial message boards, or in online chat rooms. While some of these lawsuits may have merit, others are merely retaliatory SLAPPs — attempts by the plaintiffs to silence their critics and intimidate other Internet users to keep their criticisms to themselves.
Characteristics of Message Board SLAPPs
A review site or message board SLAPP shares the characteristics typical of other SLAPPs:
- Defendant’s Speech. The SLAPP is based on the defendant’s free speech activity — online speech, in this case. The statement posted on the review site or message board is generally the sole basis for the lawsuit.
- No Legal Merit. As a lawsuit, the SLAPP has no legal merit. It masquerades as an ordinary civil lawsuit, frequently based on claims such as defamation, breach of contract, and/or trade secret violations.
- Chilling Effect. The SLAPP has a “chilling effect.” Rather than spend money on legal fees to fight the SLAPP, many defendants may find it easier to remove their posts and remain silent. The free give-and-take of discussion on review sites and message boards is also affected. Because users may fear being sued if they criticize the business, they may tone down their criticism or say nothing at all.
- “Doe” Defendants. The lawsuit usually names the defendants as “John Does” or “Jane Does.” Sometimes the complaint names the defendants by their screen names, if they post anonymously.
A review site or message board SLAPP also has some characteristics that are not common to other SLAPPs:
- Destroying Anonymity. One of the first steps the plaintiff frequently takes is the attempt to discover the identity of anonymous Internet posters. Sometimes, that is the only step the plaintiff takes. The SLAPP complaint is often vague, and may not even quote the defendants’ online statements, or even identify these statements by date or by post number. Typically, the plaintiff attempts to subpoena records from the Internet service provider. Many ISPs have policies regarding the privacy of their registered users: they send the user an email informing him or her that someone is seeking, through the courts, to discover the user’s identity, and that the ISP will not act for specific period time, during which time the user may take legal action to try preserve his or her anonymity. Although many service providers have such policies, others may not.
- “Insiders,” “Employees,” or “Former Employees.” Many of these lawsuits allege that anonymous posters are employees or former employees who are violating confidentiality or trade secret agreements, or insiders divulging confidential information. Thus, along with (or instead of) the typical defamation claim, the company may sue for breach of contract, breach of fiduciary duty, or trade secret misappropriation. There may be no reason for the company to believe that an anonymous online speaker is an employee or insider, because the defendant based his or her statements on publicly available information or is merely stating an opinion. Or the company may be using the lawsuit to discover whether any posters are employees, so it can retaliate against them.
- Allegations About Stock Prices. Some of these lawsuits also allege that the anonymous posters are attempting to manipulate the company’s stock prices. But in a message board SLAPP, the anonymous poster/defendant may simply be an investor or potential investor who is merely stating his or her opinion about the company or its management.
Your Right to Speak Anonymously
The Internet is a great forum for the anonymous speaker. Anonymity contributes to the free-wheeling exchange of opinions and information on the boards. Companies that file SLAPPs are using the courts to intimidate Internet users into silence, thus transforming these free exchanges into one-sided discussions devoid of criticism.
Your ability to speak anonymously online may be protected by the constitutional right of free speech, whether under the federal First Amendment or a state constitution. First Amendment protection is not absolute. But the United States Supreme Court has recognized that a speaker’s decision to remain anonymous is “an aspect of the freedom of speech protected by the First Amendment” (McIntyre v. Ohio Elections Comm’n. (1995) 514 U.S. 334, 342) and that online speech has as much First Amendment protection as offline speech. (Reno v. ACLU (1997) 521 U.S. 844, 868.)
In California, the right to speak anonymously springs from both the First Amendment and the right of privacy in the California Constitution. (See, e.g., Rancho Publications v. Superior Court (1999) 68 Cal.App.4th 1538, 1541, which held that the plaintiff may not use discovery procedures to obtain identities of anonymous individuals who paid for newspaper ads criticizing the plaintiff.)
A California law, which took effect on Jan. 1, 2009, allows anonymous Internet speakers whose identity is sought by a subpoena in California, based on a lawsuit filed in another state, to challenge the subpoena and recover attorney fees if they are successful. CASP and the Electronic Frontier Foundation worked to get this law passed.
Read CASP’s blog posts about online speech for more information:
- California Leads the Country in Protecting Online Anonymity
- A Great SLAPP Decision: Redmond v. Gawker Continues the Evolution of Online Defamation Law
- What To Do When Your Internet Service Provider Tells You Your Information Has Been Subpoenaed
Section 230 of the federal Communications Decency Act (47 USC § 230) provides that users and providers of interactive computer services, including the Internet, are immune from civil liability for publishing on the Internet material written by someone else. In Barrett v. Rosenthal (2006), the California Supreme Court ruled that this law protects Internet users.
In other California cases, complaints for defamation arising from Internet postings were successfully defended by invoking the state’s anti-SLAPP statute:
- Ampex Corp. et al. v. Cargle (2005, 1st District – 128 Cal.App.4th 1569, 27 Cal.Rptr.3d 863)
- Global Telemedia International Inc. v. Doe 1 aka BUSTEDAGAIN40 (U.S. District Court, Central District of California, 2001 – 132 F.Supp.2d 1261)
- ComputerXpress v. Jackson (2001, 4th District – 93 Cal.App.4th 993, 113 Cal.Rptr.2d 625)
It is important to note that the right to post anonymously is not equivalent to pretending to be someone else when you post, which is not legal.
I am eternally grateful for the representation I received from CASP. After a horrible experience with a dentist, I wrote a review on Yelp! so that other patients could avoid what I went through. Unfortunately, the dentist filed a SLAPP against me and claimed my review had caused her to suffer economic losses.
Jennifer Batoon, Online Reviewer
I was terrified at the thought of being punished financially for simply posting my opinion online, but after thoroughly researching my options, it was clear that CASP had the greatest expertise and success record with this type of case. The attorneys at CASP were wonderful to work with and succeeded in having the SLAPP dismissed.”
The information on this website is not, nor is it intended to be, legal advice. The information here is meant to provide general information to the public.