“SLAPP” suits are lawsuits brought primarily for the purpose of stifling criticism or intimidating those with opposing views by forcing them to incur legal-defense costs. (SLAPP stands for “Strategic Lawsuit Against Public Participation”). The lawsuits are often disguised as defamation actions but generally have as their true purpose a desire to silence speech deemed undesirable (regardless of whether the speech is truthful). Many states have passed anti-SLAPP laws designed to turn the tables by requiring plaintiffs who bring such suits to reimburse the defendant for legal fees incurred in fighting off the action. Virginia enacted its anti-SLAPP statute only recently–the latest amendments, which allow the recovery of attorneys’ fees for the first time, became effective July 1, 2017. Consequently, not a lot is known about how the courts will interpret and apply its terms. Its language differs markedly from the anti-SLAPP laws in other states, so the Virginia courts are going to have to blaze new territory in deciding how to apply the new law.
One big question the courts are going to have to decide: does Virginia’s new anti-SLAPP law apply to consumer reviews? In the past, defamation actions tended to be brought primarily against newspapers. But now we have the Internet, where anyone can be a publisher of content, and courts are becoming increasingly clogged with defamations brought against consumers by businesses offended by negative reviews posted to Yelp, Angie’s List, or some other consumer-review site. Concerned about studies such as the one by Harvard Business School concluding that a difference of just a single star on Yelp can affect business revenues by nearly 10%, many businesses respond very aggressively to consumers who post negative reviews that bring down their average rating, sometimes resorting to litigation. Such businesses need to be reminded, however, that the First Amendment protects consumers’ right to express their personal views, no matter how negative or harmful they may be. So is this a situation where the new anti-SLAPP law might be applied?
At least one Virginia judge–Judge Michael F. Devine of Fairfax County Circuit Court–has said yes. (There is no written opinion, but it was my case so you’ll have to just take my word for it). The statute in question is Va. Code § 8.01-223.2. It states in pertinent part that “A person shall be immune from civil liability for a…claim of defamation based solely on statements…regarding matters of public concern that would be protected under the First Amendment to the United States Constitution made by that person that are communicated to a third party….” Thus, if online consumer reviews are considered statements of “public concern” entitled to First Amendment protection, Virginia’s anti-SLAPP statute is applicable and lawsuits based on such reviews are subject to dismissal on a plea in bar and the defendant may be entitled to recovery of attorneys’ fees.
The United States Supreme Court has held that speech deals with matters of public concern when it can “be fairly considered as relating to any matter of political, social, or other concern to the community,” or when it “is a subject of legitimate news interest; that is, a subject of general interest and of value and concern to the public.” (See Snyder v. Phelps, 562 U.S. 443, 453 (2011)). In other jurisdictions, where “anti-SLAPP” laws similar to § 8.01-223.2 have been on the books for a longer period of time, several (but not all) courts have held that online reviews are matters of public concern protected under the First Amendment. For example, in Demetriades v. Yelp, Inc., 228 Cal. App. 4th 294, 310 (2014), the court referred to Yelp as “a public forum [that] contains matters of public concern in its reviews of restaurants and other businesses.” In Carver v. Bonds, 135 Cal. App. 4th 328, 344 (2005), the court held that a newspaper article about a medical practitioner was a “matter of public concern” where it found the information written would assist others in choosing a doctor. A 2012 case from the State of Washington also found that an online product review should be treated as a “matter of public concern.” (See AR Pillow Inc. v. Maxwell Payton, LLC, No. C11-1962RAJ (W.D. Wash. Dec. 4, 2012). Some anti-SLAPP statutes state expressly that they apply to product reviews, like D.C.’s Code § 16-5501(3), which defines “issue of public interest” in part as “an issue related to health or safety; environmental, economic, or community well-being…or a good, product, or service in the market place.”
Law professor and influential blogger Eric Goldman has expressed the view that “consumer reviews should categorically qualify as matters of public interest because they help consumers make better marketplace choices, and society benefits from more efficient marketplaces.” He notes that while California courts do not always share this view, the trend there does seem to be heading in this direction.
In the case I recently handled in Virginia, a roofing company sued a homeowner for $250,000 because she had posted a one-star review on Google in which she described the company as “the most inefficient, uncooperative, dishonest company I have ever had the displeasure of dealing with.” The review had an impact, because the roofing company had previously enjoyed a perfect five-star average rating. It argued that the negative review caused it to suffer “mortification, humiliation, shame, vilification, exposure to public infamy, scandal and disgrace, injury to reputation, harm in the conduct of its business affairs, and financial loss.”
The court, however, found that the review was indeed a statement on a matter of public concern that would be protected under the First Amendment. As such, it was protected against SLAPP suits by Va. Code § 8.01-223.2. The court granted the plea in bar, dismissed the case, and awarded attorneys’ fees to the consumer who wrote the review. Whether other Virginia courts will follow this example remains to be seen.