Have You Been Sued for Posting an Honest Opinion Online?
Know Your Rights. Consider The Anti-SLAPP Statute
By Liana W. Chen, Senior Associate
Kronenberger Rosenfeld LLP
Online reviews are common these days. Yelp, Facebook, and Amazon, along with forums and blogging platforms, provide ample opportunities for anyone to easily share an opinion about a business, a product, or an employer. Make no mistake, online reviews can have huge consequences to the bottom line of a business. While online reviews can keep businesses on their toes, there are many instances when companies attempt to silence their critics by alleging defamation or libel.
So, what can you do if you are sued for publishing an online review that alleges defamation?
First and foremost, before you pay any damages, consider whether the claims against you are legitimate or otherwise subject to an anti-SLAPP statute.
What Is California’s Anti-SLAPP Statute?
California’s anti-SLAPP statute, Code of Civil Procedure §425.16, allows you to request to dismiss claims against you that are based on you exercising your constitutional rights of petition or free speech in connection with a public issue and where the plaintiff has not established the probability of prevailing on the claims. Many states have similar statutes.
Your First Prong Of Defense
One way to demonstrate constitutionally protected speech is to prove that your review was made in a public forum in connection with an issue of public interest. Case law has established that public websites are generally “public” forums for the anti-SLAPP analysis, and courts often view matters of public concern broadly.
The Second Prong Of Defense
If you establish that your posted review (i.e. your exercise of free speech) was constitutionally protected, and the lawsuit alleges online defamation, the plaintiff will have to show that the publication was false, defamatory, and unprivileged. They must also demonstrate that it had a natural tendency to injure or cause special damages. See Redrearn v. Trader Joe’s Co., 20 Cal. App. 5th 989 (2018).
If applicable, you could argue that your post didn’t contain a false statement of fact, but rather, it was an opinion or hyperbole. Furthermore, a plaintiff will likely have a tough time challenging an anti-SLAPP motion if there’s sufficient evidence demonstrating that the defendant’s online statements were in fact true.
Can You Recover Fees and Costs?
If the court finds that California’s anti-SLAPP statute has been satisfied, and strikes down the suit, you would be entitled to recover legal fees and costs.
So, if you are sued for writing a review that constitutes an honest and substantiated opinion, or for publishing honest material online, consult with Kronenberger Rosenfeld. We can assess whether you have the basis to file an anti-SLAPP motion and recover your attorney’s fees and costs.
About Liana W. Chen
Liana advises clients on intellectual property and internet-related matters, including copyright and trademark infringement, online defamation, advertising, and data privacy and security.
Liana represents clients at all stages of litigation in state, federal, and administrative forums. She has broad-ranging litigation experience from pre-trial compliance to discovery and trials.
Liana obtained her J.D., with high honors, in 2011 from The George Washington University Law School, She received her B.A., summa cum laude, from the University of California, San Diego.
This entry was posted on Friday, October 26, 2018 and is filed under Resources & Self-Education, Internet Law News.