Internet speech immunity exceptions are sought frequently by individuals and businesses who are affected by someone else’s comments about them via an online site. Online sites are today’s marketplace of ideas to enhance the “competition of the market.” And so, the claim usually asserted is a defamation claim directed to the website from where the content of the comment is displayed. The assertion is underscored by a belief that the website is responsible for the publication of the statement either slander as it is conveyed verbally in a video or libel in written form displayed on a website. The issue presented by the amount of social interaction freely exchanging views which may be directed at a particular entity or person is to determine the balance between freedoms of speech, i.e., protected speech and unprotected speech. The element of having a harmful effect may or may not be pertinent in light of the level of publicity of the plaintiff, the truthfulness of the libel or slander, the public import of the statement, and the political value of the statement rendered to the discourse.
Amid the plethora of defenses that include truth, privilege, lack of malice, illegality, there is the social import or political value defense known as Anti-SLAPP. The classical meaning of the acronym is to address the events that lead to a strategic lawsuit against public participation (SLAPP). Anti-SLAPP was garnered by states to address the need to foster free speech and discourse, either in petition form or just free speech rights. The belief is that in the marketplace of ideas, with ideas being exchanged, an element of truth arises. The expectation is that the process of openness of exchanges will bring to light incorrect conceptions. The opposition to any light arising is based on this fear that their views may be rendered weak or incorrect in society; hence, they seek to silence discourse and potential dissident views.
The merit behind the Anti-SLAPP promulgation was to essentially reduce the number of frivolous lawsuits. Such suits would be driven to prevent or censor the speech or the activity of public display. The concern among judges and lawyers is that a SLAPP action is always the case responding and opposing an exercise of free speech. The SLAPP vehicle may be instrumental to challenge a lawsuit that seeks to silence free speech, especially if the targeted speech is one of public import or political value, even from the media. But, when the targeted speech attempts to convey falsehoods to the public about a private person, the speech loses its protection.
However, the other concern is when the site is used as a platform to organize activity aimed at harming other people, equivalent to using the postal service. Groups seeking to commit crimes against others, as in the facts described in Fields v. Twitter, use online platforms to carry out their plans. The idea is that if the platform prohibited such communications, that act, and its involved communicated organization would have been prevented. That expectation of monitoring conduct touches upon “policing” issues and “privacy” issues that are beyond the scope of this post.
This previous concern leads into the consideration of when a site is used to voice negative comments about someone or a business and it is claimed to be the cause of harming someone’s social and business reputation. The argument asserted is that the site could have prevented the comments from posting trying to apply Section 230 under the Communications Decency Act (CDA). The claim then seeks to establish that the online site is none other than a publisher and should be held responsible, especially when the comments could be fabrications used by the online site. This was the tone of the claims and discussion in Kimzey v. Yelp.
What stands out in Kimzey is the angle that transcends from allowing a statement or comment to be displayed towards seeking to establish that the comment was a fabrication and that it was instrumentally contrived by the online site itself. The argument goes that the online site authored the review and used it as a marketing means. The court stressed that arguing the potential falsity of a comment or review does not lend itself to disallow the online site’s immunity. Furthermore, any assessment drawn by the online site to evaluate the comment by users is based on user comments providing the information or data that essentially provides the online site to evaluate the comment and establish a measuring or rating of the comments. While there is a measure of discretion in setting the measuring, it is the users that provide the information that aids the Internet site’s grading of the comment pertaining to the subject who is claiming defamation.
The world of the web is here to stay and will be a part of our lives forever, especially as Internet law evolves. As we continue to interconnect via mobile apps and the Internet our voices carry with a broader effect. The uses of Anti-SLAPP to address silencing speech efforts or defamatory claims or the need to resort to Section 230 to immunize an online site from a defamatory claim for comments displayed on its platform are all instrumental in enhancing communication exchange in society. As Oliver Wendell Homes, Jr. coined in his dissent in Abrams v. the United States, “The ultimate good desired is better reached by free trade in ideas — that the best test of truth is the power of the thought to get itself accepted in the competition of the market.”
 Quoted phrase of Justice Oliver Wendell Homes 1919.