BLOG OWNER IMMUNITY AND THE ANTI-SLAP MOTION

Legal Commentary

By Blogonaut

An issue of widespread concern to blog owners and moderators is: “Can I be sued for defamatory comments posted by others?” The answer is “no”, and we would like to flesh out the law on this point with an actual example of someone who has been threatening to sue this blog daily for about a year.

Notorious internet troll and flame artist Kelley Lynch has emailed us ad nausium to assert that we are liable for third party comments posted on this blog, notwithstanding 47 U.S.C. Section 230, subsection (c)(1)—which provides immunity to the owners and users of an interactive blog for content authored by third parties—including blog comments.

She incorrectly speculates that this blog is “approving, controlling and dominating” the third party comments and therefore concludes (without citing any supporting case law or learned treatises on the subject) that the preemptive language of Section 230 does not apply.

Not so; Blog owners and moderators are immune under Section 230 for even moderated or “screened” third party comments—because the statute provides immunity for content authored by others.

Moreover, the California legislature has erected a very high hurdle for defamation plaintiffs known as an anti-SLAP motion—an acronym for Strategic Lawsuit Against Public Participation—that in combination with the preemptive immunity provided under federal law by Section 230 renders even the attempt to sue a California blog a risky proposition indeed for the plaintiff in such an action.

BLOG OWNER IMMUNITY UNDER FEDERAL LAW

Section 230 of the Communications Decency Act of 1996 (a common name for Title V of the Telecommunications Act of 1996) is a landmark piece of Internet legislation in the United States, codified at 47 U.S.C. § 230. Section 230(c)(1) provides immunity from liability for providers and users of an "interactive computer service" who publish information provided by others:

In a nutshell, no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.

In analyzing the availability of the immunity offered by Section 230, courts generally apply a conjunctive three-prong test:

1. The defendant must be a "provider or user" of an "interactive computer service."

2. The defamation suit must "treat" the defendant "as the publisher or speaker" of the harmful information at issue.

3. The information must be "provided by another information content provider," i.e., the defendant must not be the "information content provider" of the harmful information at issue.

(See Delfino v. Agilent Technologies, Inc. (2006) 145 Cal.App.4th 790, 804, and federal and California appellate cases cited therein.)

Therefore, we are not liable in defamation as a result of anything posted by any third party commenters—as the cases construing Section 230 hold—because we did not provide that "information" or content.

This is true under the plain meaning of the Section 230 whether the comments are “moderated” (screened) or not--the statute does not distinguish between moderated and unmoderated comments.

A CALIFORNIA BLOGGER’S BEST FRIEND: A “SPECIAL MOTION TO STRIKE” UNDER THE “ANTI-SLAP STATUTE

Code of Civil Procedure section 425.16, the so called “anti-SLAP statute”, provides in relevant part:

"A cause 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 shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim." (Id., sec. 425.16, subd. (b)(1).)

Under this statute, the defendant moving to strike a lawsuit has the initial burden to show that the cause of action "aris[es] from [an] act ... in furtherance of the [moving party's] right of petition or free speech." (Ibid.) Once that burden is met, the burden shifts to the person filing suit to demonstrate the "probability that the plaintiff will prevail on the claim." (Code Civ. Proc., § 425.16, subd. (b)(1); Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53at p. 67.)

"To satisfy this prong, the plaintiff must 'state[ ] and substantiate[ ] a legally sufficient claim.' [Citation.] 'Put another way, the plaintiff "must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment at trial if the evidence submitted by the plaintiff is credited." ' [Citation.]" (Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 741, fn. Omitted, bold italics added.) This showing must be made with competent admissible evidence, and not hearsay and speculation.

WHAT IS A PUBLIC FORUM FOR PURPOSES OF THE STATUTE?

As the California Supreme Court stated in Barrett v. Rosenthal (2006) 40 Cal.4th 33, “Web sites accessible to the public ... are ‘public forums' for purposes of the anti-SLAPP statute.” (Id. at p. 41, fn. 4, citing Huntingdon Life Sciences, Inc. v. Stop Huntingdon Animal Cruelty USA, Inc. (2005) 129 Cal.App.4th 1228, 1247; Wilbanks v. Wolk (2004) 121 Cal.App.4th 883, 895; ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 1007; MCSi, Inc. v. Woods (N.D.Cal.2003) 290 F.Supp.2d 1030, 1033; see also New.net, Inc. v. Lavasoft (C.D.Cal.2004) 356 F.Supp.2d 1090, 1107 [statements made in software available free of charge].)

“In a sense, the Web, as a whole, can be analogized to a public bulletin board. A public bulletin board does not lose its character as a public forum simply because each statement posted there expresses only the views of the person writing that statement. It is public because it posts statements that can be read by anyone who is interested, and because others who choose to do so, can post a message through the same medium that interested persons can read.” (Wilbanks v. Wolk, supra, 121 Cal.App.4th at p. 897.)

In Wilbanks, the court noted that while the defendant controlled her Web site, she did not control the Web.

“Others can create their own Web sites or publish letters or articles through the same medium, making their information and beliefs accessible to anyone interested in the topics discussed in [her] Web site. We conclude, therefore, that Wolk's statements were made in a public forum.” (Ibid.)

HOW IS THE PUBLIC INTEREST REQUIREMENT SATISFIED?

With respect to the requirement that the statements be made in connection with an issue of public interest, we note that this term is also broadly construed; any issue in which the public takes an interest is of “public interest.” ( Nygard v. Uusi-Kerttula (2008) 159 Cal.App.4th 1027, 1039.)

Even in cases where the issue is not of interest to the public at large, but rather to a limited, but definable segment of the public, constitutionally protected activity which occurs “in the context of an ongoing controversy, dispute or discussion ... [thus embodying] the public policy of encouraging participation in matters of public significance” satisfies this “public interest” requirement. (Du Charme v. International Broth. Of Elec. Workers, Local 45 (2003) 110 Cal.App.4th 107, 119.)

Continuing with our real-life example, Kelley Lynch holds some very controversial views concerning two well known celebrities, Leonard Cohen and Phil Spector, has suffered a $7.3 million judgment against her premised on alleged theft and mismanagement in favor of the former, and claims that she was “kidnapped” by the LAPD as a result of a conspiracy to retaliate against her for her report to the IRS against Cohen AS WELL AS her public support for Phil Spector.

To make matters even more controversial, Lynch frequents blogs and other public forums posting about Leonard Cohen OR Phil Spector, and often posts her controversial views there—typically drawing spirited opposing views, at which point Lynch has been known to post a letter to the IRS (copy to the FBI, the Justice Department, and to media outlets) accusing the offending blog commenter(s) of “cyber-terrorism” and “witness tampering” and demanding an investigation—provoking a sharp exchange.

This blog, and many persons who comment here, hold views contrary to some expressed by Lynch on these controversial subjects regarding two well known celebrities. Therefore, the public interest requirement is met, and the anti-SLAP statute applies.

But any topic that a well defined segment of the public is interested in (for example Leonard Cohen fans, trial watchers, NASCAR fans, etc.) will meet the public interest test and qualify the blog for anti-SLAP protection under the California statute.

HOW THE ANTI-SLAP PROCEDURE WORKS

In the illustrative example we are using, should Kelley Lynch actually file suit for defamation in California Superior Court—either where she lives or Blogonaut is domiciled—once Blogonaut filed an anti-SLAP motion, the burden would shift to Lynch to come forward with sufficient admissible evidence on each required factual element of the tort of defamation (i.e., that the defendant published the defamatory statement, that is was defamatory, that it was "fact" not "opinion", that it was false, recklessly published, and resulted in provable economic damages to the plaintiff).

In other words, she “must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited.” (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 291, citations omitted, bold italics added.)

At this point, Lynch would also be required to produce competent admissible evidence persuading the trial court that the Section 230 immunity does not apply (for example, that the blog owner in fact authored the objectionable content)—and should she fail in proving either her case would be immediately dismissed.

The anti-SLAP motion must brought at the beginning of the litigation (within a short time after service of the complaint)— and may be filed before the defendant has been required to answer.

In addition, The filing of the anti-SLAP motion immediately and automatically stays the litigation—including any discovery proceedings or pending subpoenas—until the motion is decided.

LOSING PLAINTIFFS MUST PAY THE DEFENDANT’S LEGAL FEES

If Kelley Lynch failed to meet that burden, not only would the trial court be required to dismiss the suit before we were even required to file an answer in court and the judge would also be required to award to the all defendants in the suit all attorneys fees and costs each of them expended in bringing the special motion to strike as well as in connection with any appeal from the decision. (Code Civ. Proc., 425.16, subd. (c) ["In any action subject to subdivision (b), a prevailing defendant on a special motion to strike shall be entitled to recover his or her attorneys fees and costs"].)

BLOGGER'S APPEAL FROM ORDER DENYING ANTI-SLAP MOTION STAYS CASE

In addition, should an anti-SLAP motion be denied by the trial court, not only is that decision appealable, but the filing of the notice of appeal will automatically stay the entire lawsuit until the appeal is resolved, and the matter returned to the trial court. (Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 195-196 [“Because we must follow the Legislature's intent, we agree with Mattel, supra, 99 Cal.App.4th 1179, 121 Cal.Rptr.2d 794, and hold that an appeal from the denial of an anti-SLAPP motion automatically stays further trial court proceedings on the merits. [Footnote omitted.]".)

With civil appeals taking an average of a year and a half to two years to resolve in California, a defamation plaintiff is looking at a substantial trial delay even if the trial court concludes that the case has enough minimal merit to proceed. A court of appeal will still have to screen the case for minimal merit all over again.

But such a plaintiff’s biggest risk is that if she cannot come forward with competent admissible evidence in opposition to the anti-SLAP motion, establishing that she can prove each and every element of her defamation case AND that the case is not barred by Section 230, the case will be dismissed and the defendants awarded their attorneys fees.

In the last such special motion to strike we litigated, the defense incurred in excess of $50,000 in bringing the motion in the trial court and another $70,000 briefing the case on appeal and preparing for oral argument—so the risks to California defamation plaintiff are not insubstantial.

Plaintiffs counsel must screen defamation cases against California bloggers very carefully, because not only are they not going to collect a contingent fee of if the case is dismissed, if dismissed they are exposed under California law to being sued for malicious prosecution, if a court later determines that no reasonable attorney would have considered the case to be meritorious. (See, Sheldon Appel Co. v. Albert & Oliker (1989) 47 Cal.3d 863, 867 and subsequent California Supreme Court cases citing it.)

So take heart California bloggers, you have powerful legal tools available to defend yourself against spurious defamation suits—particularly in respect to third party content, including blog comments by others.