California SLAPP Law

The legal pendulum swings, and attorneys who don’t stay current with anti-SLAPP law will likely be surprised by this new reality concerning online reviews.

As anti-SLAPP law developed through court decisions, one of the issues that needed to be decided was whether online reviews are a matter of public interest, such that they would fall under the first prong of the anti-SLAPP analysis.

I recall that while this issue was still in flux, I represented a client who had posted an online review about an attorney, who then sued her for defamation. I brought an anti-SLAPP motion, and argued vigorously that the review was indeed a matter of public interest because such reviews are useful to members of the public in deciding which professionals to hire.

A not very thoughtful judge in San Bernardino was shocked that a client would discuss the competency of their attorney in public. He denied my anti-SLAPP motion, stating that “the proper venue for such concerns is with the State Bar.”

Thankfully, the attorney in question was more thoughtful than the judge, and realized that the ruling would not survive on appeal, so he dismissed the action. While I did not win the battle, I won the war for my client.

My position – that online reviews are a matter of public interest – became the law of the land (not because it was my position, but because it made sense), and that position has been pretty sacrosanct for probably the last 20 years.

But as Bob Dylan sang, “the times they are a-changin’.” Recent decisions, and the judges in some of my recent cases, have been willing to listen to an equally persuasive counter-argument.

Here is the legal reasoning, using one of my cases.

My client owned a company that manufactured and sold protein powder. The buyers of that protein powder were of course free to post online reviews, reporting their opinions about the quality of the powder, its taste, how well it blended into a smoothie, or whatever. That would be fair game, and would satisfy the first prong of the anti-SLAPP analysis, since consumers would be interested learning these things, to determine whether they wanted to buy this particular brand of protein powder.

A quick aside: A key point that I find is still misunderstood is that one can still sue for defamation, even if the speech satisfies the first prong of the anti-SLAPP analysis. The first prong simply establishes that the speech is of the type that is covered by the anti-SLAPP statute. The second prong establishes whether that speech will support a defamation action. And the flip side of this is that if the speech does not fall under the anti-SLAPP statute, then the moton is denied, without ever making a determination as to the relative merits of the action.

The defendant was in a dispute with my client, and posted reviews about the owner of the business that had nothing to do with the protein powder. Nonetheless, the defendant responded to our defamation action with an anti-SLAPP motion, claiming that since the comments were part of a review about the business, they satisfied the first prong. I argued, and the trial court agreed, that the comments did not “advance the conversation” about the relative merits of my client’s protein powder, and therefore were not a matter of public interest.

That is the point some attorneys are missing. An online review is a matter of public interest because it provides information to assist with a buying decision. If the review strays from that purpose, it no longer satisfies the first prong.

That takes us to the case of a puppy named Pinkerbell. The following facts are taken from the Colorado case of Tender Care Veterinary Center, Inc. v. Jennifer Lind-Barnett. I have no personal knowledge concerning this case, and cannot speak to the truth or falsity of the statements.

According to the court’s opinion, in January 2022, Lind-Barnett brought her puppy, Pinkerbell, to Tender Care for emergency veterinary services; a vet examined the puppy and released her back to Lind-Barnett’s care. When the puppy did not appear better, Lind-Barnett administered her own treatment to the puppy at home. The next morning, she brought the puppy to a different vet clinic, where the dog was diagnosed with pneumonia and successfully treated. Several days later, Lind-Barnett contacted Tender Care to inform it that it had improperly treated her puppy. Tender Care initiated a review of the puppy’s treatment and, after determining that the puppy had received the requisite standard of care, refused Lind-Barnett’s request for a refund.

Another quick aside: No doubt, given the nature of my practice, I am a little jaded about how such situations should be handled. For example, a medical professional wanted to retain me to sue a patient for defamation. During her first visit to the doctor, she left when she was offended by his purported lack of bedside manner. She was shocked when she later discovered that the doctor had billed her insurance $120 for the visit, and demanded that he reverse the charge. He refused, and she made it her life’s work to bad mouth him in every conceivable forum. But nothing she was saying was defamatory. She factually reported what had occurred. His business suffered terribly, but there was nothing that could be done. I get that customers can be unreasonable, but unless it crosses the line into extortion, there is something to be said for the old adage, “the customer is always right.” Even if the patient’s request to reverse the charge of $120 was unreasonable, is it worth creating an enemy over?

And now we turn to Spicy:

Continuing with the court’s opinion, in March 2022, Davis took her dog, Spicy, to Tender Care for ataxia, or difficulty walking and balancing. After an examination and bloodwork, Tender Care diagnosed the dog with a resolved seizure. Davis took her dog home, and when the dog continued to have symptoms overnight, Davis brought her to a different vet clinic, where the dog was diagnosed with vestibular disease and treated.

In February and March 2022 – after Tender Care declined Lind-Barnett’s refund request – Lind-Barnett posted six online reviews about her experience with Tender Care on her personal Facebook page, Tender Care’s Facebook page, and four different community-based Facebook pages.

In March 2022, Davis responded to several of Lind-Barnett’s posts with similar posts about the adequacy of care her pet received at Tender Care and Tender Care’s business practices.

In their posts, defendants asserted, among other things, that Tender Care was guilty of professional “malpractice”; that it employs “incompetent,” “inept,” and “less than adequate” doctors and staff who are “ignorant” and “dishonest,” “lack training and misdiagnose,” and repeatedly commit “malpractice”; that Tender Care has numerous “complaints” filed against it “with the labor board”; that Tender Care allowed and encouraged “covid positive employees to come into work”; that “dozens of others” have “post[ed]” that the Tender Care owner’s “elderly father,” a former lawyer, was used “to threaten people”; that Tender Care isn’t “actually an emergency clinic” but “the biggest scam to ever walk into our town.”

After defendants refused to remove their posts, Tender Care sued for defamation per se against each defendant, based on 104 of Lind-Barnett’s statements and 10 of Davis’s statements. Defendants responded, filing an anti-SLAPP motion.

So you now have the scene. The conventional wisdom is that online reviews qualify as a matter of public interest. By definition, if someone searches for a business and reads the reviews, they have an interest in that business. The process is self-selecting. If I don’t plan to ever eat at Shake Shack, I probably won’t take the time to read reviews about it.

So were these reviews about Tender Care a matter of public interest?

In its order, the trial court concluded that defendants had failed to establish that their statements addressed “matters of public interest or a public issue,” and that, consequently, the matter did not fall within the protections of the anti-SLAPP statute: The statements described in the parties’ submissions are a private business dispute, essentially a pair of customer complaints. The complaints were statements of alleged fact regarding the Defendants’ individual customer experiences. For one Defendant, these expanded to generalized allegations leveled at the business, qualifications, and business practices. Those statements were made on the internet in social media fora that had restricted distribution rather than fully public. “The court does not find that anything about the nature of veterinary services or their arguable location in a “small community” (in context this characterization of this community on the border of a large city is questionable) renders such matters of public interest for purposes of the [anti-SLAPP statute].”

The defendants appealed, but the Court of Appeal affirmed the ruling. Interestingly, although this was a Colorado case, that state’s anti-SLAPP statute is based on California’s, and the court relied heavily on decisions from California, most notably, FilmOn:

But the step-one analysis does not end with the identification of a public concern, issue, or interest to which statements could theoretically relate. A particular type of nexus must exist between the challenged statements and the asserted issue of public interest. FilmOn.com, 439 P.3d at 1165. Agile thinkers always can create some kind of link between a statement and an issue of public concern. All you need is a fondness for abstraction and a knowledge of popular culture. This pervasive potential means there must be “some degree of closeness between the challenged statements and the asserted public interest.” A tangential relationship is not enough. There is “a need to go beyond the parochial particulars of the given parties.” Woodhill Ventures, LLC, 283 Cal. Rptr. 3d at 513. “[I]t is not enough that the statement refer to a subject of widespread public interest; the statement must in some manner itself contribute to the public debate.” FilmOn.com, 439 P.3d at 1166 (quoting Wilbanks v. Wolk, 17 Cal.Rptr.3d 497, 506 (Ct. App. 2004)). And that determination can “hardly [be] undertaken without incorporating considerations of context – including audience, speaker, and purpose.” Id., see McIntyre, 194 P.3d at 525 (“In determining whether statements involve a matter of public concern, we . . . analyze ‘the content, form, and context of the statements, in conjunction with the motivation or “point” of the statements as revealed by the whole record.”

The key takeaway.

By way of analogy, the litigation privilege is said to be absolute. Nothing said in conjunction with litigation can be the basis for an action. But it is only “absolute” where the speech advances the purpose of the litigation.

The same analysis is now being applied to online reviews. It is not enough to simply show that the statements were made in the context of an online review. It must also be shown that the speech “advances the discussion.”