Online defamation has become all-too common. From the individual to the business they all have become subject of ill comments online. Many, espousing their belief in their First Amendment right to free speech, have misused that right. Doing so, they claim immunity from defamation claims. Many claim truth, they were privileged, or that their statement was a matter of opinion. An extension of them claim that their statement was a matter of pubic interest and that the plaintiff suing was trying to silence the defendant speaker. In this realm of defense, the defendant speaker seeks to file a motion to strike under the particular state’s Anti-SLAPP provision.
As can be foreseen, 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 against 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 affect 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 amount 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 to a free speech incident. 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.
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 for 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 aid the online site’s grading of the comment pertaining to the subject who is claiming defamation.
What is catching many defendant speakers by surprise is that the test for assessing public interest draws a line on many factors including the relative publicity or privacy of the plaintiff who was defamed by the defendant speaker. Another aspect is to assess the scope of what regarded the subject matter of the claimed defamatory statement. Along with the assessment of public interest is the assessment of its truth. Truth of what the defendant speaker is critical, regardless of the public interest. No defendant speaker can masquerade the speech as having a public interest receive protection when the statement written of spoken lacked truthfulness. That is termed as the “truth test.” Truth tests have become the death knell to many Anti-SLAPP protection seekers.
Online defamation will be recurring event on the Internet as the world of the web is here to stay. As society continues to interconnect and networks seamlessly sync transmission of communications statements carry with a broader affect. 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 for enhancing communication exchange in society. But while the protections are available they may not apply in all occasions.
 Quoted phrase of Justice Oliver Wendell Homes 1919.