Decisions Mixed on Whether On-Line Reviews are Matters of Public Concern
“I wish I’d never posted that online review!”
A Strategic Lawsuit Against Public Participation (“SLAPP”) is a lawsuit or a threat of lawsuit that is intended to intimidate and silence critics by burdening them with the cost of a legal defense until they abandon their criticism or opposition. Winning the lawsuit is not necessarily the intent of the person filing the SLAPP. The plaintiff’s goals are accomplished if the defendant succumbs to fear, intimidation, mounting legal costs or simple exhaustion and abandons the criticism. A SLAPP may also intimidate others from participating in the debate.
To guard against the use of lawsuits designed to quash free speech, California passed an anti-SLAPP statute. Code of Civil Procedure Section 425.16 provides a quick procedure a defendant can use to stop a SLAPP suit. Rather than goes through a year of costly litigation, a defendant can bring a simple motion to strike the complaint. The court then decides whether the speech in question is protected free speech. Claims stemming from these acts are subject to a special motion to strike unless the trial court determines that the plaintiff has demonstrated a probability of prevailing on the merits. (§ 425.16, subd. (b)(1).)
Section 425.16 applies to causes of action “against a person arising from any act of that person in furtherance of the person’s right of petition or free speech under the United States or California Constitution in connection with a public issue.” (§ 425.16, subd. (b)(1).) Such acts include: “(1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law; (2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law; (3) 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; (4) or any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.” ( Id., subd. (e).)
But note that the section requires a “public issue.” Many parties and judges forget this element, as illustrated by the recent, unreported decision, European Spa, Inc. v. Kerber, decided by the First District Court of Appeal on August 28, 2008.
In European Spa, a Yahoo.com user posted a review of the Spa, which stated:
“My first impression was its tacky décor. Then I encountered an extremely rude European gentlemen, I believe this is the owner. From what I could see, the employees are miserable and tired. When I went into the steam room I saw mildew and brown spots on the walls…. I could not even sit in there. I went for my massage, and that was ok. But the room had a strange smell and the blankets were dingy. It was also very cold. I guess the owner does not put on the heat. There is just too much to go on about. I will never go there again, and I will make sure I will tell as many people as I can about the horrible experience that I had.”
Another review, posted on Yelp.com, stated:
“One star is even too much for this place. First of all, when I walked in there it looked like selling a whole bunch of useless things you’ll wind up selling at a garage sale. The service was horrible. I had this creepy old European man helping me and he was just outright rude. The guy was acting as if he was doing me a favor by letting me come to his spa…. And what was with the 18 percent service charge? ? ? It’s questionable that the therapists or the providers ever receive it. My massage was ok and that was the only highlight of this…. And their sauna and steam room … was really disgusting. Their lounge are was just full of tacky decorations as what I’ve heard they’ve been around for a long time, and I really don’t understand why…. I would never come back and much would rather go to the spa at my gym.”
The owners of the spa were convinced that these posts came from a former employee that had started her own competing spa, not from customers. (As it turned out they were right, but they suspected the wrong employee.) They sued the former employee, who brought an anti-SLAPP motion, claiming that whether or not she was the person who had made the posts, they were protected free speech.
Resolving the merits of an anti-SLAPP motion requires a two-part analysis, concentrating initially on whether the challenged cause of action arises from protected activity within the meaning of the statute and, if so, proceeding next to whether the plaintiff can establish a probability of prevailing on the merits. (Overstock.Com, Inc. v. Gradient Analytics, Inc. (2007) 151 Cal.App.4th 688, 699.)
Several years ago the court in Rivero v. American Federation of State, County and Municipal Employees, AFL-CIO (2003) 105 Cal.App.4th 913, 924 (Rivero) made inroads into articulating the boundaries of what constitutes a “public issue” or issue of “public interest” as those terms are used in section 425.16, subdivision (e). Surveying the pertinent case law, the Rivero court identified three categories of statements that fit the bill: (1) the subject of the statement concerned a person or entity in the public eye; (2) the statement or activity involved conduct that could directly affect large numbers of people beyond the direct participants; or (3) the statement or activity concerned a topic of widespread public interest.
The court in Weinberg v. Feisel (2003) 110 Cal.App.4th 1122, 1132 also addressed the issue, delineating some attributes of an issue which would render it one of public, rather than merely private, interest: “First, ‘public interest’ does not equate with mere curiosity. Second, a matter of public interest should be something of concern to a substantial number of people. Thus, a matter of concern to the speaker and a relative small, specific audience is not a matter of public interest. Third, there should be some degree of closeness between the challenged statements and the asserted public interest; the assertion of a broad and amorphous public interest is not sufficient. Fourth, the focus of the speaker’s conduct should be the public interest rather than a mere effort ‘to gather ammunition for another round of [private] controversy….’ Finally, … [a] person cannot turn otherwise private information into a matter of public interest simply by communicating it to a large number of persons.”
In European Spa, the court concluded defendant was wrong in concluding that reviews posted on the Internet are subject to an anti-SLAPP motion, because they did not meet the “public interest” element. The reviews did not connect with or encourage any larger discussion or public debate of general societal or consumer issues related to the spa industry. For example in Gilbert v. Sykes (2007) 147 Cal.App.4th 13, a patient/consumer created a Web site that related the consumer’s experiences with plastic surgery performed by a prominent, widely known plastic surgeon, as well as information and advice for those considering plastic surgery. As the reviewing court explained, these statements concerned a matter of public interest within the meaning of section 425.16. The assertions that a high profile surgeon produced nightmare results that prompted extensive revision surgery contributed toward public discussion about the risks and benefits of plastic surgery in general. Equally important, the Web site was not limited to attacking the plastic surgeon, but contained advice, information and other features, including tips on choosing a plastic surgeon, that contributed to the general debate over the pros and cons of undertaking cosmetic surgery. (Gilbert v. Sykes, supra, at pp. 23-24.) The (fraudulent) spa reviews did not rise to that level, and the trial court denied the anti-SLAPP motion on that basis.
The same week, the Second District Court of Appeal came to a different conclusion in the unpublished decision of Kim v. IAC/InterActive Corp. There, a review about a dentist was posted on Citysearch, which read:
“Don’t go there-worse dentist in Glendale.”
I do not recommend Dr. Kim. I randomly selected him as my dentist but after my initial visit, I was very discouraged. He made it very clear that he did not like HMO patients (which I was). His attitude towards me was poor as if I was a second-class citizen. I waited 5 weeks to schedule an initial visit, and he made me wait another 6 weeks to schedule my first cleaning. “Because you’re an HMO patient, we cannot schedule you at convenient times.” He is also understaffed. His receptionist doubles as his dental assistant. She was quite unprofessional and made comments about my age and marital status when I turned in my patient information card. All in all, DO NOT use this dentist!”
The dentist filed a complaint and subpoenaed the records from Citysearch, and then filed an action against the poster, Citysearch.com and other defendants. The defendants filed an anti-SLAPP motion, which the trial court granted based entirely on the fact that the dentist was unlikely to prevail in his action.
The result was correct, but the reasoning was flawed. The statement did not cross the line into defamation or trade libel, and the action against Citysearch.com would never have survived under the Communications Decency Act, which shields Websites from liability for information posted by others. But the court never considered whether the post was a matter of public interest.
Print-on-Demand Publishers not Liable for Defamation, Maine Court Holds
When is a publisher not a publisher? When it is a copy machine. Confused? Consider the following case.
In Sandler v. Calcagni, a defamation action was filed in the federal district court in Maine over a book that was printed and distributed by BookSurge, a print-on-demand service owned by Amazon.com. In case you are not yet familiar with these services, they are “publishers” that permit anyone to upload a tome and have it made into a book. The author can buy copies of his own book to sell or distribute, and in the case of BookSurge and others, the book will be added to Amazon’s catalog of available books. If someone comes across the author’s book, it can be ordered, printed and shipped.
In the Sandler case, a dispute arose among some high school students and one of the parents came up with the creative idea of publishing a book in order to tell her side of the story. The target of her vitriol responded by suing her for defamation, along with BookSurge as the publisher of the book. With traditional books, the publisher can be held liable for defamatory content, because it is presumed that the publisher reviewed and edited the book and therefore had the opportunity to make certain the author could back up the claims. But can that model be applied to a print-on-demand service that never sees the material?
In Sandler, the court said no. The court correctly concluded that print-on-demand publishers are really no different than electronic copy machines. The author uploads the text to BookSurge’s servers, and whenever someone wants a copy they can cause the book to be printed. Since the “publisher” has nothing to do with the content of the book, the court found that it could not be held responsible for the defamatory content
This is just one case, and it is not controlling on other states, but I predict every state will reach the same conclusion. If the publisher is merely acting as a copy machine, it makes no more sense to hold it liable than you would hold Microsoft or Adobe liable for providing the publishing tools.
What are the Elements of Defamation?
We can answer all your questions about defamation, but sometimes if you have a general understanding of the law, you can ask better questions about the facts of your case. Some attorneys think a defamation action is like a personal injury case, but the proof necessary for a defamation action is very different. As a nation, we put such a value on free speech that the burden is high to prove defamation.
Defamation is the inclusive term, including both slander and libel. In other words libel and slander are both defamation, but libel is printed and slander is spoken. Defamation occurs when someone makes a false, unprivileged statement about someone to a third party, which attacks the person’s professional character or standing, claims that an unmarried person is unchaste, claims the person has a sexually transmitted disease, or that the person has committed a crime of moral turpitude. Stated another way, to constitute defamation the statement must falsely accuse the plaintiff of immoral, illegal or unethical conduct. Generally, the statement must harm the reputation of the person, but in the case of per se defamation, damages will be presumed. This last point is very important, because if a plaintiff had to prove actual damage, the burden of proof in most cases would be nearly impossible.
Let’s examine each element more closely:
1. False Statement of Fact
Truth is an absolute defense to a claim for defamation. No one can prevent you from telling the truth, even if that truth harms someone else. Further, the statement of an opinion generally will not constitute defamation, since it is not offered as a statement of fact. For example, it a food critic states that a restaurant serves horrible food, that is not defamation since taste will always be an opinion. Even if the restaurant brought 100 witnesses to court to attest that the food is wonderful, the critic is still entitled to his opinion.
On the other hand, some believe that they can escape liability by casting a fact as an opinion. A number of clients have come to us for a second opinion after another attorney has told them a statement is not defamatory because it was stated as an opinion. Adding the word “opinion” to a defamatory statement does not automatically shield the speaker from liability. The determining factor is whether the “opinion” is about a verifiable fact. For example, as stated above, a food critic is protected when he offers his opinion about the food, but if he says, “in my opinion the food was horrible and the restaurant has rats,” the statement about rats is defamation (assuming it is false) because it is a verifiable fact. Similarly, “In my opinion, he cheats on his taxes” is a defamatory statement since it is the assertion of a fact, even though it is called an opinion.
2. Unprivileged
There are many statutes that afford a “privilege” to someone to speak, and in those cases the person is shielded from defamation. (See Civil Code section 47.)
For example, say you are looking out your window one day, and you see someone break a window in the house across the street, and climb into the house through that broken window. Thinking a burglary is occurring, you call the police who soon arrive and drag the suspect out of the house at gun point, only to discover that the person owns the house, and had been forced to break in when he locked himself out. You’ve just made a false statement to a third party, claiming that your neighbor was breaking the law. Can you be sued for defamation?
No, because there is a statutory privilege afforded to anyone making a good-faith report to the police. There is also a very strong litigation privilege, protecting witnesses from anything they say in court or in commencement or furtherance of the action. We often get calls from people wanting to sue a witness because “he lied on the stand” or submitted a false declaration. But the court system would come to a grinding halt if witnesses could be sued for what they say, so the law shields them with a privilege (although a witness who testifies falsely can be criminally prosecuted for perjury). Many clients have trouble with this concept, especially in the context of a custody suit, because the court will appoint an evaluator and of course the parent disagrees with everything contained in the report. They want to sue the evaluator for the “lies” contained in the report. Such actions are barred in almost every case because of the litigation privilege. The solution is not to sue, but rather to introduce your own evidence to show that the evaluator is wrong.
One privilege that really surprises people is the right your former employer has to tell prospective employers what a bad employee you were. An urban legend has appeared, stating that an employer is only allowed to confirm the employment of a former employee, without offering any opinion about job performance. Quite to the contrary, California Civil Code section 47 provides that an employer may offer such an opinion and is immune from suit unless it can be shown that false information was given out of malice.
3. Statement made to a third party
No statement, no matter how false and vile, can constitute defamation if it is made only to the person that is the basis of the statement. Defamation arises from a loss of reputation. How can you lose reputation if the statement is made only to you. And if you repeat the slander or show someone the libelous statement, the speaker or publisher remains free from liability, because you are the one that “published” the statement.
4. Immoral, illegal or unethical conduct
A statement is not defamatory just because it is false, even if it arguably casts the person in a bad light. Your application to join the local bowling league is rejected, and you later find out that one of the people on the board stated you were a really bad bowler. In fact, you are an outstanding bowler. Nonetheless, it is not defamation since being a bad bowler is neither immoral, unethical or illegal.
5. Harm to reputation
Finally, even if all the elements for defamation are met, the facts can sometimes present a difficult case to prove. For example, assume that while at a party, a stranger approaches your spouse and falsely tells him or her that you are having an affair. If your spouse laughs it off, then how has there been a loss of reputation? The statement is defamatory, because it falsely accuses you of immoral conduct, but how were you damaged? If, on the other hand, your spouse storms from the party, drives home and puts all your belongings in the front yard, then what was your reputation to begin with? If your spouse was willing to believe such a statement from a stranger with no further investigation or collaboration, then he or she did not hold you in very high regard in the first place. You apparently did not lose any reputation, because it was not there to start. This is just one example of the nuances that arise in a defamation action.
What can I do?
Most attorneys think in terms of suing, and will want to run to court. At Morris & Stone, we carefully examine your goals to determine the best plan for your specific situation. We are ready and able to go to court if that is the best approach, but sometimes other approaches better fit your goal. For example, in one case our client was defamed by a newspaper. He walked around with a cloud over his head, knowing that many people had read and believed the horrible, false accusations printed about him in the paper. Even if the paper printed a retraction, it would be a little paragraph buried on page 12 that no one would read. Similarly, money damages would do nothing to restore his good reputation.
The solution? We prepared and served a complaint to apply pressure, and then negotiated a settlement that was beyond anything our client could have hoped for. In addition to paying our client damages, the paper agreed to provide four pages for our client’s use. He was free to use one page at a time over several weeks, or use all four pages at once, to publish a retraction of the things that were said about him. In other words, he was given a blank canvas to use however he wanted to clear his good name.
That was the perfect remedy for that client, and we will work to find the prefect solution for you.
Your reputation is priceless
Whether you respond with just a letter or go to a full blown lawsuit, you should never allow a defamatory statement to go unchallenged. Silence is perceived as acceptance. If you did nothing about what was being said about you, it must be true. The goal in a defamation action can be to recover damages, but often that is not the primary goal. The priceless value of a defamation action is to gain back your reputation. When someone says to you, “but didn’t I hear or read somewhere that you [fill in the blank]?”, you can answer, “yes, someone was spreading that lie, but I sued him and he was found liable for defamation and had to pay me damages.”
Subpoenas not subject to anti-SLAPP in Internet Defamation Case
Plaintiff obtained a pre-filing discovery order in Ohio to aid in his effort to learn the identities of the anonymous individuals who had posted statements about him on the Internet that he believed were defamatory. Defendants, who we will refer to as the Does, are the anonymous individuals who posted those statements. When Google, the subject of Tendler’s discovery order, refused to comply with Ohio subpoenas, Tendler filed a request for subpoenas in Santa Clara County Superior Court premised on the Ohio discovery order. The Does filed a motion to quash and a Code of Civil Procedure section 425.16 motion to strike (anti-SLAPP motion). The threat of having to pay defendants’ attorney fees was sufficient for him to withdraw his request for subpoenas. Nonetheless, the Does proceeded on their section 425.16 motion to strike.
The trial court granted the Does’ anti-SLAPP motion to strike, and awarded them their attorney fees. The trial court concluded that a request for subpoenas was sufficient to trigger the anti-SLAPP procedure. The Court of Appeal disagreed, and concluded that a request for subpoenas does not fall within section 425.16, and therefore the trial court erred in granting the motion and in awarding attorney’s fees.
This was another example of a trial court misusing the anti-SLAPP procedure to try to clear its trial docket. In a standard action, where defendant tries to strike the complaint by way of an anti-SLAPP motion, the trial court must afford reasonable discovery so that plaintiff can try to find sufficient evidence to create a prima facie case. If a plaintiff could be subjected to an anti-SLAPP motion from the mere request for discovery, that would greatly reduce his ability to defend his reputation.
Tendler v. jewishsurvivors.blogspot.com (2008) 164 Cal.App.4th 802
