- California Anti-SLAPP Project - https://www.casp.net -

CyberSLAPPs: Being Sued for Speech Online

Businesses and executives are increasingly suing individuals who exercise their First Amendment rights by posting messages on review sites, Internet financial message boards, or in online chat rooms. While some of these lawsuits may have merit, others are merely retaliatory SLAPPs — attempts by the plaintiffs to silence their critics and intimidate other Internet users to keep their criticisms to themselves.

Characteristics of Message Board SLAPPs

A review site or message board SLAPP shares the characteristics typical of other SLAPPs:

A review site or message board SLAPP also has some characteristics that are not common to other SLAPPs:

Your Right to Speak Anonymously

The Internet is a great forum for the anonymous speaker.  Anonymity contributes to the free-wheeling exchange of opinions and information on the boards.  Companies that file SLAPPs are using the courts to intimidate Internet users into silence, thus transforming these free exchanges into one-sided discussions devoid of criticism.

Your ability to speak anonymously online may be protected by the constitutional right of free speech, whether under the federal First Amendment or a state constitution. First Amendment protection is not absolute.  But the United States Supreme Court has recognized that a speaker’s decision to remain anonymous is “an aspect of the freedom of speech protected by the First Amendment” (McIntyre v. Ohio Elections Comm’n. (1995) 514 U.S. 334, 342) and that online speech has as much First Amendment protection as offline speech. (Reno v. ACLU (1997) 521 U.S. 844, 868.)

In California, the right to speak anonymously springs from both the First Amendment and the right of privacy in the California Constitution. (See, e.g., Rancho Publications v. Superior Court (1999) 68 Cal.App.4th 1538, 1541, which held that the plaintiff may not use discovery procedures to obtain identities of anonymous individuals who paid for newspaper ads criticizing the plaintiff.)

A California law [1], which took effect on Jan. 1, 2009, allows anonymous Internet speakers whose identity is sought by a subpoena in California, based on a lawsuit filed in another state, to challenge the subpoena and recover attorney fees if they are successful.  CASP and the Electronic Frontier Foundation worked to get this law passed.

Read CASP’s blog posts about online speech for more information:

Immunity for Reposting

Section 230 of the federal Communications Decency Act (47 USC § 230) [5] provides that users and providers of interactive computer services, including the Internet, are immune from civil liability for publishing on the Internet material written by someone else.  In Barrett v. Rosenthal [6] (2006), the California Supreme Court ruled that this law protects Internet users.

In other California cases, complaints for defamation arising from Internet postings were successfully defended by invoking the state’s anti-SLAPP statute:

It is important to note that the right to post anonymously is not equivalent to pretending to be someone else when you post, which is not legal.

I am eternally grateful for the representation I received from CASP. After a horrible experience with a dentist, I wrote a review on Yelp! so that other patients could avoid what I went through. Unfortunately, the dentist filed a SLAPP against me and claimed my review had caused her to suffer economic losses.
I was terrified at the thought of being punished financially for simply posting my opinion online, but after thoroughly researching my options, it was clear that CASP had the greatest expertise and success record with this type of case. The attorneys at CASP were wonderful to work with and succeeded in having the SLAPP dismissed.”

Jennifer Batoon, Online Reviewer

The information on this website is not, nor is it intended to be, legal advice. The information here is meant to provide general information to the public.