CA Anti-SLAPP Cases Involving Consumer Reviews as Matters of Public Concern
By Eric Goldman (with research assistance from the HTLI Graduate Fellow Michael Scapin)
As I’ve indicated previously, I support efforts to enact a federal anti-SLAPP law. While I think it’s a good idea for a number of reasons, I especially would like to see federal anti-SLAPP protection for consumer reviews of vendors.
Consumer reviews are a tricky area for anti-SLAPP coverage, however. Historically, anti-SLAPP laws were designed to protect public participation in official government matters. Consumer reviews normally don’t fit within that model of anti-SLAPP laws. California has taken a broader approach by providing anti-SLAPP coverage for matters of public concern, but even then, it’s not 100% clear that consumer reviews of vendors satisfy this standard.
As part of supporting the ongoing drafting process for the proposed federal anti-SLAPP legislation, Mike and I took a deeper look at the California cases addressing whether or not consumer reviews qualified as matters of public concern for purposes of CA’s broad anti-SLAPP law. This research, by definition, had several limits. First, finding the right search keywords is tricky. Second, we deliberately left out some borderline cases, such as the cases involving stock trading message boards (although we included GTX v. Left). Third, so many CA appellate cases are unpublished–we can still find them in our search, but they don’t contribute to the jurisprudence. Finally, there’s no easy way to search California superior court rulings, so the inclusion of a couple such cases is purely fortuitous.
Looking through the complete group of cases, I reached an overall assessment that wasn’t exactly comforting. California’s consumer review anti-SLAPP cases appear to make a distinction between a “pure” consumer review solely addressing the vendor’s performance, which isn’t a matter of public concern, and a review that provides additional commentary on other issues, such as how to choose a vendor in that class, which does qualify as a matter of public concern. This distinction helps explain both the unfavorable cases enumerated below plus a few of the favorable cases (such as the Wong, Gilbert and Wolk cases).
If I’m correct that courts are making this doctrinal distinction, then many consumer reviews on Yelp, TripAdvisor, etc. might not qualify for California anti-SLAPP protection because they only assess the consumer’s experience with the reviewed vendor and don’t engage any broader themes. From my perspective, this is a clear hole that I think the federal anti-SLAPP law should fill by expressly including consumer reviews within the statutory scope. Even if this distinction does not actually exist, the fact that we found two (admittedly unpublished) unfavorable cases indicates the dangers of an undefined statutory reference to “matters of public concern.”
If you are aware of any other relevant cases not listed below, please let me know. The cases we found:
* Wong v. Jing, 2010 WL 4457330 (Cal. App. Ct. 2010). “Moreover, the posting went beyond parochial issues concerning a private dispute about particular dental appointments. It implicitly dealt with the more general issues of the use of nitrous oxide and silver amalgam, implied that those substances should not be used in treating children, and informed readers that other dentists do not use them. Thus, the review was not just a highly critical opinion of Wong?s performance on particular occasions; it was also part of a public discussion and dissemination of information on issues of public interest.”
* Navarro v. Cruz, 2010 WL 2183227 (Cal. App. Ct. 2010) (unpublished). Blog covered matters of public interest when “the blog addressed issues ranging beyond the specific wrongs and breaches claimed to have been suffered by its writer, on issues such as immigrant exploitation, fraud, and substandard housing. These issues would affect and would be of interest to many present and future immigrant teachers-including not just those who had allegedly been victimized, and not even just those who had actually contracted with UPI, but also those who might be considering becoming immigrant teachers through UPI or other such agencies. And the blog expressly sought to rally others to support changes in the claimed practices and in the contractual and other requirements that foreign teachers believed they were forced to accept, and encouraging others “to ‘stand up’ to pursue a common goal” involving an ongoing controversy.”
* Calibra Pictures, Inc. v. Variety, BC 433 320 (Cal. Superior Ct. 2010). Negative newspaper review of a movie qualified as a matter of public concern.
* MagicJack LP v. Happy Mutants LLC, CV091108 (Cal. Superior Ct. 2009). “THE POSTING ON DEFENDANT’S WEBSITE PROVIDES INFORMATION ABOUT PLAINTIFF’S PRODUCT NOT ONLY TO THE “SUBSTANTIAL” NUMBER OF PEOPLE WHO HAVE ALREADY PURCHASED THE DEVICE, BUT ALSO TO OTHER CONSUMERS WHO MIGHT BE CONSIDERING PURCHASING SUCH A DEVICE.”
* Penney v. Isbell, 2008 WL 607594 (Cal. Ct. App. 2008) (unpublished). “While we hesitate to oversimplify, these cases teach that statements encouraging and promoting the public discussion of current issues of broad concern that potentially affect significant numbers of people, as well as statements disseminated as part of what could be described as consumer protection information and advice, are generally considered statements involving issues of public interest within the meaning of the anti-SLAPP statute. In contrast, statements involving purely personal controversies unconnected to any larger discussion of general societal or consumer issues are not statements involving issues of public interest.”
* GTX Global Corp. v. Left, 2007 WL 1300065 (Cal. App. Ct. 2007) (unpublished). “Left’s statements on Stocklemon.com amounted to the same type consumer interest information found to be protected in Wilbanks. Left suggested reasons why consumers should be wary of investing in GTX. As such, the statements were directly connected to an issue of public concern.”
* Gilbert v. Sykes, 147 Cal. App. 4th 13 (Cal. App. Ct. 2007). “Gilbert’s Web site contributed toward the public debate about plastic surgery in at least two ways: First, assertions that a prominent and well-respected plastic surgeon produced “nightmare” results that necessitated extensive revision surgery contributes toward public discussion about the benefits and risks of plastic surgery in general, and particularly among persons contemplating plastic surgery as a means of looking younger or improving their appearance….Second, a review of the entire Web site shows that it is not limited to Gilbert’s interactions with Sykes. The Web site contains advice, information and a contact page where readers can share their own experiences. At the Selecting a Doctor link, a page on “Useful Information” has tips on choosing a plastic surgeon, including references to other Web sites and resources. A Red Flags link lists “Things to look out for” or warning signs to look for when selecting a doctor to perform the surgery. A Final Thoughts/Contact Me link features Gilbert’s ruminations about plastic surgery in general, not all of it negative. Clearly, the Web site was not limited to attacking Sykes, but contributed to the general debate over the pros and cons of undergoing cosmetic surgery.”
* Carver v. Bonds, 135 Cal. App. 4th 328 (Cal. App. Ct. 2005). “The [newspaper] article warned readers not to rely on doctors’ ostensible experience treating professional athletes, and told what it described as “a cautionary tale” of plaintiff exaggerating that experience to market his practice. Since the statements at issue served as a warning against plaintiff’s method of self-promotion, and were provided along with other information to assist patients in choosing doctors, the statements involved a matter of public concern.”
* Wilbanks v. Wolk, 17 Cal. Rptr. 3d 497 (Cal. App. Ct. 2004). “Consumer information, however, at least when it affects a large number of persons, also generally is viewed as information concerning a matter of public interest….Here, it appears that the viatical industry touches a large number of persons, both those who sell their insurance policies and those who invest in viatical settlements. According to plaintiffs, their own business generated an average monthly income of $58,333 before Wolk’s statements about them appeared on her Web site— and plaintiffs are but one of many brokers. It is undisputed that Wolk has studied the industry, has written books on it, and that her Web site provides consumer information about it, including educating consumers about the potential for fraud. As relevant here, Wolk identifies the brokers she believes have engaged in unethical or questionable practices, and provides information for the purpose of aiding viators and investors to choose between brokers. The information provided by Wolk on this topic, including the statements at issue here, was more than a report of some earlier conduct or proceeding; it was consumer protection information….The statements made by Wolk were not simply a report of one broker’s business practices, of interest only to that broker and to those who had been affected by those practices. Wolk’s statements were a warning not to use plaintiffs’ services. In the context of information ostensibly provided to aid consumers choosing among brokers, the statements, therefore, were directly connected to an issue of public concern.”
* Dunne v. Lara, 2009 WL 3808345 (Cal. App. Ct. 2009) (unpublished). “Lara’s comments were no more than a report about Dunne’s business practices, of interest only to Dunne’s customers and potential customers. Lara has not demonstrated the existence of any widespread public debate and his statements are not protected by section 416.26, subdivision (e)(3) or (4).”
* Sandra Caron European Spa, Inc. v. Kerber, 2008 WL 3976463 (Cal. App. Ct. 2008) (unpublished). “The Internet postings which the Kerbers contend are protected speech under the anti-SLAPP statute critiqued a local, family-owned spa, disparaging the dÈcor and attractiveness of the facility, the attitude and service of the person who purportedly helped the reviewers, and the conditions of the steam room and sauna. Caron Spa is not an entity that is in the public eye; nor are its owners….Wolk does not help the Kerbers because, as the trial court pointed out, the reviews were essentially phony customer reviews, drafted not by customers but by former employees of Caron Spa, a status shared by Mrs. Kerber….Moreover, the reports were simply about one spa’s purported business practices; there was no wider context to the statements that would aid consumers in choosing among spas. In other words, the reviews did not connect with or encourage any larger discussion or public debate of general societal or consumer issues related to the spa industry.”
We didn’t find much in other states. One case worth noting:
Gardner v. Martino, 2005 WL 3465349 (D. Or. 2005) (affirmed on other grounds by the Ninth Circuit). “given the cases holding that issues of consumerism, including complaints about products and services, are issues of public interest, I conclude that the statements made here about plaintiffs and their alleged treatment of Feroglia and the quality of the product, are properly considered statements about a public issue or an issue of public concern within the meaning of Oregon’s anti-SLAPP statute.”
SEPT. 2011 UPDATE:
A few other cases I’ve found of possible relevance:
* Kim v. IAC/InterActive Corp., 2008 WL 3906427 (Cal. App. Ct. 2008): dentist’s defamation lawsuit against a patient and CitySearch over a CitySearch review tossed per California’s anti-SLAPP; defendants awarded attorney’s fees.
* Rahbar v. Batoon, case # CGC-09-492145 (San Francisco Superior Ct. filed Sept. 2, 2009): dentist’s defamation lawsuit over a Yelp review tossed per California’s anti-SLAPP; patient awarded $43k in attorney’s fees.
NOV. 2011 UPDATE:
* Hamilton v. Prewett, 860 NE 2d 1234 (Ind. Ct. App. 2007): “While we acknowledge that there may be instances where entertainment is a public issue or an issue of public interest that warrants anti-SLAPP protection, we do not find this to be one of those occasions. Hamilton’s suit against Prewett, while unsuccessful on the merits, is not the type of lawsuit that the anti-SLAPP statute was enacted to prevent. Unlike the plaintiffs in the previous Indiana anti-SLAPP cases, Hamilton did not file his suit to stifle Prewett’s speech on a public issue or an issue of public interest.”
* Berryhill v. Georgia Community Support & Solutions Inc., 281 Ga. 439 (2006). Critical web posting didn’t constitute petitioning activity for purposes of Georgia’s anti-SLAPP statute.
* Higher Balance, LLC v. Quantum Future Group, Inc., 2008 WL 5281487 (D. Or. Dec. 18, 2008): “There is no doubt that the statements here were made in connection with an issue of public interest, specifically, the quality of HBI’s products and services developed by Pepin [HBI's co-founder].”