The First Amendment, Bad Reviews, and You: So You’ve Been Smeared on the Internet

Part I of this article discussed the “threshold” issues to be analyzed when a business is on the receiving end of a negative, and potentially defamatory, online review. In so doing, Part I covered the quasi-legal options of proceeding via the online review platform’s dispute resolution process, and established the framework for a defamation claim—in particular, the preliminary issues of unmasking an anonymous reviewer, personal jurisdiction, and fact versus opinion statements. Part II of this discussion will address the next step in the analysis: whether a business’s online review defamation claim can withstand the inevitable challenge of an anti-SLAPP motion.

Your Claim on the Merits – The Anti-SLAPP Analysis

California—along with many other states—have employed a statutory strategy to reinforce the First Amendment by discouraging the filing of lawsuits based on protected speech: the anti-SLAPP (Strategic Lawsuit Against Public Participation) statute. In other words, it’s a statutory device that allows a defendant, sued for claims arising from “protected activity” (read: speech or other expressive conduct), to strike the plaintiff’s complaint and—drumroll please—obtain an award of attorney’s fees for drafting, filing, and arguing the anti-SLAPP motion. As is too often the case, it is the fee provision that makes the world go round, and what should make every potential defamation plaintiff pause and think before suing an online reviewer for defamation.

The anti-SLAPP statute in California mandates a two-step analysis to determine whether the complaint can be stricken: (1) do the claims arise from “protected activity,” and (2) if they do, does the plaintiff have a probability of prevailing on the merits of their claim? Kim v. R Consulting & Sales, Inc., 67 Cal. App. 5th 263, 270-71 (2021). This analysis is a burden-shifting framework where defendant has the burden on prong one of the above analysis, and if that burden is met, the burden then shifts to defendant to prove prong two. Id.

Protected Activity

The California anti-SLAPP statute outlines four categories of protected activity, but for the purposes of online defamation in the context of negative reviews, only two of the four categories are potentially applicable. California Code of Civil Procedure section 425.16(e)(3) provides that “[s]tatements made in a place open to the public or a public form in connection with an issue of public interest” constitute protected activity. Subsection (e)(4) is a “catchall” category, which provides protection for “[a]ny conduct in furtherance of First Amendment rights in connection with a public issue or an issue of public interest.”

For subsection (e)(3), as applied to negative online reviews, the first element—a place open to the public or a public forum—is usually easily met. That is, because websites like Google and Yelp are publicly accessible, they are considered public forums. However, grey areas arise when negative statements are made not on public review sites, but on “private” social media pages that may restrict access to certain users. See Turnbull v. Lucerne Valley Unified School District, , 535 (2018).

As for the second element of (e)(3), the “public issue/interest” element, that is also usually easily met for a negative review. To the extent the reviewer is opining about the quality of your services or character, those issues are typically fair game in the sense that “warning” other potential consumers about a business’s shortcomings is considered an issue of public interest. See Chaker v. Mateo, 209 Cal. App. 4th 1138, 1146 (2012) (“The statements posted to the Ripoff Report Web site about [plaintiff’s] character and business practices plainly fall within the rubric of consumer information about [plaintiff’s] ‘Counterforensics’ business and were intended to serve as a warning to consumers about his trustworthiness.”).

Even if the statement is made on a private web page or group, the catchall category of (e)(4) can still render the conduct protected if the statement concerns a “public issue or an issue of public interest.” Practically speaking, the analysis is very similar to the second element of subsection (e)(3), and is thus likely to be met by a similar “warning” about a business’s services. However, if the audience for the disparaging review or post are people that are unlikely to patronize the business in the first place, then it’s questionable whether the issue becomes one of public concern when the statement is made by one person to a private collection of individuals.

Lastly, as a final note, if the negative review is actually comparative advertising masquerading as a negative consumer review, that speech is not protected. That is, said “review” is actually commercial speech that falls outside of the protected activities under section 425.16(e). See Code Civ. Proc. § 425.17(c); Xu v. Huang, 73 Cal. App. 5th 802, 813 (2021) (citations omitted) (“The purpose of [the commercial speech exemption of section 425.17(c) from the anti-SLAPP statute] is straightforward: A defendant who makes statements about a business competitor’s goods or services to advance the defendant’s business cannot use the anti-SLAPP statute against causes of action arising from those statements.”). Thus, in a scenario where a negative review of a dry cleaner suspiciously names a competing dry cleaner as superior, and assuming the prospective plaintiff has reason to believe it was posted by someone at that competitor, it may merit pursuing the defamation claim as the defendant could fail to meet its burden on the first step of the anti-SLAPP motion.

In short, because of the very nature of online reviews, unless the review is about something utterly unrelated to your business and your character (which seems unlikely given the breadth of Chaker), then you will likely have the burden of proving a probability of prevailing on the merits on an anti-SLAPP motion.

Probability of Prevailing

Elements of Defamation

Because of the nature of negative online reviews, several elements of defamation are usually presumptively met. Defamation requires proof of (1) publication of the statement to a third party, (2) the audience reasonably understanding that the statement is about plaintiff, (3) the audience reasonably understanding the statement to have a meaning damaging to the plaintiff’s reputation, (4) the falsity of the statement, and (5) depending on several factors, a certain quantum of intent regarding the falsity of the statement.

For a negative online review, elements 1 through 3 above are pretty much always met—the review identifies the plaintiff, the audience understands it to be about the plaintiff as it is on their only Yelp or Google reviews page, and the negative nature of the review is presumptively damaging to the plaintiff’s business reputation. As for falsity, the most frequent pitfall for a prospective plaintiff is the fact versus opinion issue referenced above—that is, if a statement is one of opinion, it cannot be proven false.

The final element is the deepest. The nature of whether the plaintiff is a private or public figure, and whether the issue about which the speech is concerned controls whether a plaintiff must prove that the defendant published the defamatory statement with actual malice—to wit, whether the defendant made the statement with knowledge of its falsity, or reckless disregard as to its falsity. See CACI 1700-1705. In the context of an online review, it is debatable whether the business being reviewed would be considered a public figure.

For example, in Vegod Corporation v. American Broadcasting Company, 25 Cal. 3d 763, a company liquidating a historic San Francisco department store sued ABC for a news broadcast stating that they were selling of inferior goods at inflated prices. ABC argued that plaintiff, by virtue of stepping in to liquidate a famous department store, had rendered itself a public figure. The California Supreme Court disagreed, holding that “criticism of commercial conduct does not deserve the special protection of the actual malice test” and that “a person in the business world advertising his wares does not necessarily become part of an existing public controversy.” Id. at 770. Moreover, the court also noted that “[m]erely doing business with parties to a public controversy does not elevate one to public figure status.” Id. at 769. In short, under Vegod, in many online reviews, the reviewed business would not likely be deemed a public figure simply because of its status as a business open to the public.

On the other hand, it is not difficult to imagine a scenario where an online review of a business is in the context of a broader public controversy into which the business has more or less willingly inserted itself, which would result in application of the public figure label and the actual malice test to online reviews. For example, the Los Angeles Bar “Schwartz & Sandy’s,” featured extensively on the Bravo reality television show “Vanderpump Rules,” recently found itself on the receiving end of a massive review-bombing campaign by fans of the show apoplectic over the infidelity of one of the bar’s co-owner’s, Tom Sandoval. Although that review-bombing incident was resolved via the Terms of Service recourse discussed in the part I of this article, it is not difficult to imagine that the business entity that owns the bar would be held to be a public figure due to the actions of its principals in seeking extensive media exposure through the show, had push come to shove.

Affirmative Defenses

Litigation Privilege

Even if a defamation plaintiff can show a likelihood of success on the merits of the elements of defamation, the plaintiff must also overcome any purported affirmative defenses advanced by defendant. However, despite the quirks of the anti-SLAPP burden-shifting framework, the defendant bears the initial burden of establishing the defenses of privilege—affirmative defenses commonly advanced in defamation cases. See Peregrine Funding, Inc. v. Sheppard Mullin Richter & Hampton LLP, 133 Cal. App. 4th 658, 676 (2005) (“[A]lthough section 425.16 places on the plaintiff the burden of substantiating its claims, a defendant that advances an affirmative defense to such claims properly bears the burden of proof on the defense.”). That said, if the defendant meets that burden of establishing the existence of a privilege, the plaintiff then bears the burden of showing that they can overcome that claim of privilege. See Blanchard v. DIRECTV, Inc., 123 Cal. App. 4th 903, 922 (2004) (“[P]laintiff’s showing failed to demonstrate prima facie that they could overcome the litigation privilege. By contrast, [defendant] demonstrated that the privilege does apply.”).

The most significant of these privilege defenses is the litigation privilege of Civil Code section 47(b). The litigation privilege is very broad, almost shockingly so, in that it completely immunizes a defamation defendant from liability for any statements made “in connection” with litigation, which often includes pre-litigation communications such as demand letters. See, e.g., Blanchard, 123 Cal. App. 4th at 919-22 (2004).Because of the breadth of the litigation privilege, negative online reviews that closely precede a lawsuit could be within the ambit of the litigation privilege and thus totally defeat any defamation claims arising from it. This is the case regardless of the falsity of the statement, and regardless of malice. See, e.g., Quidel Corp. v. Siemens Med. Solutions USA, Inc., No. 16-cv-3059-BAS-AGS, 2019 U.S. Dist. LEXIS 167363,at *24 (S.D. Cal. Sept. 27, 2019) (quoting Butler v. Resurgence Fin., LLC, 521 F. Supp. 2d 1093, 1095 (C.D. Cal. 2007) (“Even if it is alleged that a party ‘made misrepresentations in the complaint, false statements in sworn discovery responses . . . and false allegations,’ the conduct is all covered by the litigation privilege.”); compare Civ. Code § 47(b) with Civ. Code § 47(c).

However, negative online reviews are often an end unto themselves; negative reviewers scratch the itch to strike at the business that has apparently wronged them in a quicker and dirtier fashion than the civil justice system can offer. Moreover, in an unpublished case, the Ninth Circuit Bankruptcy Appellate Panel recently upheld a ruling that rejected the application of the litigation privilege to negative online reviews that were premised solely on self-serving declarations stating that the reviewers were “contemplating” litigation at the time they were posted. Dickens v. Bradley (In re Dickens), No. CC-21-1202-FSG, 2022 Bankr. LEXIS 2277 (Aug. 17, 2022). Accordingly, at least some courts are wise to defense attorneys overplaying their hands in an attempt to hide behind the broad shield of the litigation privilege.

Common Interest Privilege

The common interest privilege, on the other hand, has a narrower application that is nonetheless better suited to online reviews. The common interest privilege as codified in Civil Code section 47(c) protects speakers from liability for statements made to a person with an interest common to the speaker, or who has requested said information from the speaker, “without malice.” Online reviews are presumptively geared toward those with common interests: the prospective use of the goods or services of the business being reviewed. However, assuming malice is already required if the business is deemed to be a public figure, the proof of malice necessary to show a likelihood of success on the merits would also defeat any claims of common interest privilege. The importance of the common interest privilege grows exponentially if the business is a private figure, in which case the plaintiff could meet its burden of showing a likelihood of success without showing malice, the defendant could in turn raise the defense of the common interest privilege which would require the defendant to prove an absence of malice. Byzantine, we know.

Conclusion

A defamation claim is a proverbial hornets’ nest even outside of the context of a potentially anonymous online review. Inside that context, numerous legal issues and pitfalls exist such that any business contemplating a defamation claim should think long and hard before pursuing one, especially given the draconian penalty of paying the other side’s attorneys’ fees for unsuccessfully opposing an anti-SLAPP motion. All that being said, businesses would do well to be fully informed about their legal options to combat unfairly negative online reviews, from the quasi-legal options covered in Part I, to the legal options covered in Part II herein. Of course, from a business perspective, the best option is usually engaging with the review, answering it thoughtfully, and working out a resolution with the customer. But there may be reviews that are genuinely false and done with bad intent that may merit pressing the big, blinking red button of a defamation action.