If you’ve never heard of a strategic lawsuit against public participation, consider yourself lucky.
I hadn’t either until a knock at my door on a January evening seven years ago. A process server pushed an envelope into my hand. “You are being sued,” a notice at the top of the document proclaimed. I felt my pulse quicken.
SLAPP lawsuits – which most often take the form of a defamation suit – are surprisingly common. They are meant to burden individuals with the cost of a legal defense until they stop their criticism. They affect travelers disproportionately, in large part because travelers’ opinions have the power to raise the fortunes of a hotel or restaurant – or to put them out of business.
Last year, for example, about 2,500 TripAdvisor users removed their reviews because they were being harassed by businesses they had rated, according to the site. It’s not known how many disrupted reviews resulted in lawsuits.
The Speak Free Act, which is expected to be considered by Congress in early 2017, allows any person against whom a SLAPP suit has been filed to make a special motion to dismiss the lawsuit. Proponents say a new anti-SLAPP law is needed on the federal level because only a patchwork of state laws exist, and they offer uneven protection against these frivolous legal complaints.
The Speak Free Act would allow travelers to quickly end these lawsuits before they run up legal bills. Supporters say the law would also encourage consumers to offer honest reviews without fear of retribution.
“Sometimes, businesses will threaten frivolous defamation lawsuits as a way to censor criticism,” says Mark Grabowski, an Internet law professor at Adelphi University. “The business knows it has no chance of winning the lawsuit, but merely wants to intimidate customers, rivals and others from expressing negative opinions about the business.”
That was certainly my initial reaction when I was sued. I didn’t want to write another word about the travel agency that claimed I had defamed it. But my lawyer advised me to cover every detail of the lawsuit, arguing that the bright glare of publicity would make it disappear.
He was correct. And after several months of back-and-forth, the lawsuit was dropped.
I’m not alone. Consider what happened to Michelle and Robert Duchouquette, who were sued for defamation, business disparagement and a breach of contract earlier this year by a Dallas-area pet-sitting business. The Duchouquettes had hired Prestigious Pets to care for their two dogs while they were on vacation. But they were unhappy with the service and left a one-star review on Yelp.com.
Prestigious Pets claimed that the couple’s review violated a non-disparagement agreement they signed when they hired the company and sought between $200,000 and $1 million in damages. A court has dismissed the lawsuit.
“There’s no denying that these types of lawsuits serve to punish those who speak out by placing on them the heavy burden of costly civil litigation,” says Nannina Angioni, a labor and employment attorney with the Los Angeles law firm Kaedian. “To me, these lawsuits tend to send a clear message: ‘Talk ill of us, and we will sue you – and it doesn’t matter if we win or not because either way, you’ll be stuck with the legal bills.’”
So how would the anti-SLAPP bill work? A lot like the 28 other anti-SLAPP laws in the country, including one in the District. If someone thinks that the complaint against them is a SLAPP suit, they can file a special motion, usually at the beginning of the case. That motion would force the plaintiff to prove that the case has at least some merit and that the speech is not protected by the Constitution.
“If this is demonstrated, the burden shifts to the bringer of the suit to show that there is a reasonable probability of winning the case and is not completely frivolous in nature,” says Oz Czerski, an Orlando, Florida, attorney who specializes in First Amendment law and writes the entertainment law blog thewizardoflaws.com.
Aside from protecting consumers from frivolous lawsuits, why is a new law needed?
“Passage of the Speak Free Act would have positive effects for all travelers – those who write reviews and those who rely upon travel reviews in deciding how to spend their hard-earned money,” says Brad Young, assistant general counsel for TripAdvisor, one of the companies backing the bill.
Until the bill passes, legal experts say you need to be careful.
You could be faced with a SLAPP suit “even if you post an honest review,” warns Nicole Williams, an attorney in the Dallas office of Thompson & Knight, which represented the Duchouquettes. If a business files a SLAPP lawsuit against you, or even if you receive a demand letter, she advises contacting a lawyer and the review platform for help.
What about anonymous reviews?
“Consumers may be surprised to know that even if they post comments on a public site anonymously or under a pseudonym, there is still a legal mechanism for a company or individual to learn their real identity and bring suit against them,” says Michael Niborski, a partner in the Los Angeles office of the law firm Pryor Cashman.
Even if the case has no merit – and SLAPP cases seldom do – it could be months or years before it’s resolved. Enough time to scare the average consumer into silence and score a victory for a business intent on controlling its image.
Christopher Elliott is the author of How to Be the World’s Smartest Traveler. Email him at firstname.lastname@example.org.