Legal Actions Against Online Criticism
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Legal Actions Against Online Criticism

August 2012

An anonymous customer rails against a restaurant's service and food quality in a post on a popular Internet blog. An organization claims on its Facebook page to represent hundreds of customers protesting the business practices of a financial institution.

The target of such a complaint may ask, "How can they get away with saying that?" or "What are my rights?" or "Can I sue?"

Many websites provide guidelines and terms of service that forbid content such as threats, harassment, bigotry, and hate speech, and warn that the website will police content by self-regulation. (See, for example, Yelp guidelines, or Yelp terms of service.) Aside from protesting directly to the website, what other options are there for the target of an online attack?

Legal theories of defamation allow a plaintiff to challenge statements alleged not to be true. (Cal. Civ. Code § 44.) Libel theories flow from defamation to allow legal challenges to writings with content alleged not to be true. (Cal. Civ. Code §§ 45, 45a.) At the same time, free speech rights are broader under the California Constitution than they are under the U.S. Constitution. (Los Angeles Alliance for Survival v. City of Los Angeles, 22 Cal. 4th 352, 366 (2000).) In addition, anti-SLAPP (Strategic Lawsuits Against Public Participation) protections exist under California law to shield free speech from being chilled by the legal process. (See Cal. Code Civ. Proc. §§ 425.16-425.18.)

The California Supreme Court analyzed defamation and libel in the context of Internet postings in Barrett v. Rosenthal (40 Cal. 4th 33 (2006)). There, two doctors brought libel and conspiracy claims because of Internet postings that referred to them as "quacks" and an email accusing one of the doctors of stalking women.

The complaint was stricken in earlier proceedings based on an anti-SLAPP motion. Citing section 230 of the Communications Decency Act of 1996 (47 U.S.C. § 230), which provides immunity from liability for providers and users of an "interactive computer service" who publish information provided by others, the court affirmed the motion to strike and refused to impose defamation liability on "Internet intermediary" users of the allegedly defamatory material or on the online republishers of that material.

Instead, the court held that "plaintiffs who contend they are defamed in an Internet posting may only seek recovery from the original source of the statement." (Barrett, 40 Cal. 4th at 40.) The court stressed that the intent of Congress in passing the act was not to chill online speech, and that Congress had taken no steps to revise legal standards.

Many Internet content posters conceal their identity. A plaintiff's need for discovery into the identity of the Internet poster becomes a significant consideration when the source of a damaging Internet posting is anonymous. An unpublished California appellate opinion in ViroLogic, Inc. v. Doe (2004 WL 1941335 (Cal. Ct. App.)) suggests an approach to this issue.

In that case, an anonymous person posted inflammatory messages on an Internet bulletin board about ViroLogic. The biotechnology company then wanted to discover who made the postings so it could pursue defamation and related claims against the poster. The lower court had allowed limited discovery and a deposition of Doe, but it forbid ViroLogic's attorneys to divulge Doe's identity to their client. The lower court also granted Doe's anti-SLAPP motion to strike ViroLogic's complaint alleging defamation, trade libel, unfair competition, and interference with prospective economic advantage.

The appellate court determined that when an Internet poster is anonymous, the interest of plaintiffs to identify him or her must be balanced with the defendant's free speech and privacy interests. Where a plaintiff's complaint raises actionable claims against the defendant, the plaintiff also needs the defendant's identity to oppose the anti-SLAPP motion to strike the complaint. The court acknowledged the impediment the lower court placed on the plaintiff and its counsel by forbidding counsel to reveal the defendant's identity to the plaintiff itself, finding it to be a due process violation. In particular, the court noted that Doe was a former ViroLogic employee who had signed a confidentiality agreement with the company, which therefore might also have been able to pursue a breach of contract claim against Doe had it been able to learn from its counsel the anonymous speaker's identity.

Further complications and difficulties can arise when Internet postings originate from locations outside the state, such as in Krinsky v. Doe 6 (159 Cal. App. 4th 1154 (2008)). The case involved defamation-based claims raised under Florida law and a corporate president in Florida who wished to reveal the identity of the anonymous poster through a subpoena in California. The poster called the executive a "cockroach" and referred to his sexual practices and hygiene, among other comments. The court looked at the allegedly unlawful conduct under Florida defamation law. Finding the online messages to be offensive and demeaning but not actionable under Florida law, the court determined there was no need for discovery into whether the plaintiff was a public figure and thus would have to prove malice to establish the defamation claim. The appellate court ruled that the trial judge should have granted the defendant's motion to quash the California subpoena to identify the anonymous speaker.

Relying in part on the Krinsky decision, other courts have recognized that online blogs and social media sites are places where readers expect to see strongly worded opinions rather than objective facts, and where the use of pseudonymous screen names offers a safe outlet for users to "experiment with novel ideas, express unorthodox political views, or criticize corporations or individuals without fear of intimidation or reprisal." (Summit Bank v. Rogers, 206 Cal. App. 4th 669, 697 (2012) [citing Krinsky].) Thus, the obstacles faced in challenging defamatory Internet postings perhaps signal the courts' endorsement of another "important purpose" of the Communications Decency Act: to "encourage service providers to self-regulate the dissemination of offensive materials over their services." (Delfino v. Agilent Technologies, Inc. (145 Cal. App. 4th 790, 802, (2006).)

Where the courts have been slow or reluctant to take action, the National Labor Relations Board has stepped in. In one case, employees of a firm were mutual Facebook friends and communicated via wall postings about their employer's tax issues, suggesting that the employer could not do paperwork correctly and had embezzled employees' pay. The employer threatened to file a defamation claim if the employees' postings were not retracted, and it eventually fired the employees. An NLRB administrative law judge considered that the comments were not available to the general public since they were among Facebook friends and that the employees had, in fact, suffered adverse tax consequences due to the employer's actions. Finding no falsehood or reckless disregard for the truth in the postings, which were workplace-related, the judge ruled that the statements were protected under the National Labor Relations Act. The employer's threats of legal action over the statements were ruled an unfair labor practice. The employees' terminations were deemed unlawful, which led to an award of reinstatement and back pay. (Three D, LLC, dba Triple Play Sports Bar and Grille (2012 WL 76862 (NLRB, Div. of Judges, N.Y. Branch Office).) (An administrative law judge's ruling typically leads to review by an NLRB panel in Washington, D.C.)

Constitutional free speech protections for Internet communications are strong indeed. However, the law is still developing in this digital age. Before embarking on a legal challenge, pursue a careful, factual examination of communication details and applicable law.

Thomas A. Lenz, a partner at Atkinson, Andelson, Loya, Ruud & Romo's office in Cerritos, represents employers and heads the firm's NLRB practice.

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