Ripoff Report Is “Lucky” Plaintiff Didn’t Allege Extortion–Albert v. Ragland

[It’s impossible to blog about Section 230 without reminding you that it remains highly imperiled.]

I’m blogging one of four California Appeals Court opinions issued today in cases involving Lenore Albert, a lawyer. I’m focused on an appeal of several different rulings in a case over negative things said about her online. I previously blogged one of those rulings, when Yelp won an anti-SLAPP ruling based on Section 230. This ruling affirms Yelp’s $30k fee shift for winning that anti-SLAPP motion to strike.

This ruling also affirms Ripoff Report’s anti-SLAPP dismissal based on a third party review. The court says plainly and emphatically:

There is no question that to the degree Xcentric simply operates a website for people who want to complain about businesses, it is immune, under section 230 of the federal Telecommunications Act of 1996 (47 U.S.C. § 230), from causes of action based on any content posted by those complainers.

In a footnote, the court rejects “as regards Xcentric, a bad review is not illegal, (even though it might be defamatory). We also note that Albert offered no evidence that Xcentric paid the author of the bad review quoted in footnote 3 to write the review, thereby in part contributing to its content.” The court engaged in overly casual dicta here. Paying for reviews would not disqualify Ripoff Report for Section 230 immunity, a proposition that goes all the way back to the Drudge v. Blumenthal ruling from 20 years ago (one of my top 10 Section 230 rulings).

Albert also argued that Ripoff Report is extortionate, but the court says “Albert made the fundamental mistake of waiting until after an anti-SLAPP motion was filed before presenting her extortion theory about Xcentric” so the argument is now procedurally foreclosed. Still, the court gives backhanded compliments to Ripoff Report: “in the interests of justice each side will bear its own costs on appeal in regard to Xcentric. Xcentric is the lucky beneficiary of Albert’s failure to include an extortion claim in her complaint.” Hmm.

The court also affirms the anti-SLAPP dismissal by individual defendants who posted negative remarks to Facebook. Citing Wong v. Jing among other cases, the court says:

All the alleged defamatory comments were made on Facebook, and it is now established that Facebook is a public forum within the meaning of the anti-SLAPP statute…And they were about Albert, who has made herself an object of public interest as a high-profile, publicity-worthy, anti-foreclosure, anti-bank litigator. Albert might not be quite the second coming of William Jennings Bryan, but she has certainly established a public profile as an anti-bank lawyer whose crusading efforts are designed to benefit not only her clients but the public in general….

Given Albert’s efforts to project herself as a champion for consumers and distressed homeowners against big banks, comments on her ethics and competence to represent consumers and distressed homeowners come within the public interest protection of the anti-SLAPP statute. If articles about doctors and insurance brokers are within the purview of the anti-SLAPP statute, so too are comments about the competence and ethics of a lawyer heavily involved in the foreclosure fallout from that 2008 recession.

This discussion reminded me a little of the recent anti-SLAPP dismissal of a professor’s defamation lawsuit over a RateMyProfessor review. You can’t actively build your public profile and then argue you’re not a public figure for anti-SLAPP purposes.

Case citation: Albert v. Ragland, 2018 WL 1163993 (Cal. App. Ct. March 6, 2018)