Anti-SLAPP Laws Without Mandatory Award of Fees and Costs is a Hinderance to the Access to Justice and Chills Free Speech

Arizona recently passed a new anti-SLAPP law, 2022 Ariz. HB 2722 (it’s not in effect yet and won’t be for a few months at least) and while a colleague of mine and are are working on a more comprehensive discussion about anti-SLAPP and this new law specifically (which I will link here once done and/or you can always follow me here or on various social media to get the latest) as I was writing the initial draft of that article this week I became more and more frustrated. Anti-SLAPP laws without a mandatory award of attorneys fees and costs to the prevailing party of such motion is a hindrance to the access to justice for real victims of SLAPP suits and chills free speech. How? Let me elaborate.

I should preface this with the fact that I spent the better part of a decade working as in-house counsel of an interactive online forum and I’ve pretty much seen it all when it comes to true victims sharing their honest stories (and being threatened because if it) and bad actors using the Internet as a source of revenge (where people are desperate to make the harassment stop and to remove untruthful, hurtful, information from the platform). As such, my opinion is through a lens of having heard countless stories from all sides.

Generally speaking (obviously there are always outliers) those who lawfully criticize wrongdoers, especially online, do so because they don’t have the means to file suit regarding the experience that led to the criticism. Complaining online is their remedy. If those being criticized are powerful and/or wealthy, it’s really easy to say “Take that content down or I’ll sue you.” Many Americans are living paycheck to paycheck, but even if they are comfortably above that, they often cannot afford to be sued. Just look at how long it took to get through the Depp/Heard case. Granted, that was where two parties were heavily pushing back on who was right … but this is not unlike many civil cases. In fact, the behaviors exhibited in that court room and on display for the watching world to see is not all that unusual for litigating parties. The only difference there is that it was televised and people care enough about celebrity dirt to watch the case unfold on live television/online streaming.

But if you aren’t a celebrity or wealthy individual … if you cannot afford to fight back through expensive lawyers, even if you’re in the right … what do you do? Chances are you begrudgingly remove the content to save your own pocket book, or worse, lose a legal action and end up with a, albeit by default, judgment against you if you cannot, for whatever reason (and there are many reasons) don’t appear in a case. Ahh, yes … the threat of a SLAPP suit is indeed a huge and powerful sword.

But what happens if you cannot remove the content because the website’s terms of service prohibit it, or such posting has been scraped and put up elsewhere such that you do not have control over it? Oh yes, this happens all the time online. People don’t read Terms of Service and unfortunately, copy cat websites scrape content that isn’t theirs. In this instance, chances are, you will get sued anyway. Why? Because it’s worth it for the wealthy/powerful to try to get a court order to remove the content from the internet and they can’t do that without a suit. After all, many platforms will honor court orders for content removal even if they are obtained by default.

And in a lot of ways, this makes sense. Especially when bad actors/defamers hide behind anonymous accounts and/or are in foreign countries that make pursuing the perpetrator cost prohibitive or near impossible for real victims. Real victims need relief and this is one such pathway to remedy. On the other hand, for the truth tellers, it can be hard to stand up to wealthy/powerful bad actors when faced with a lawsuit. Those who speak up honestly can get the short end of the stick. If a suit is filed, and they can’t afford to defend against it, are they to be victimized yet again by default? I know it happens. I’ve seen it happen. Let me give you an example.

Imagine with me for a moment that you are a business owner of a new start-up company called Cool Business, LLC operating in Arizona, and you want to engage the services of a advertising company. Your friend, Tim, gives you the name of Great Advertising Co. based out of New York. A New York advertising company sounds fancy and you think they will probably do a far better job than anyone here in little Arizona so you reach out to them. The conversation goes great, they send you a basic contract to sign for the work to be done for Cool Business, LLC and require a $6,000.00 deposit so they can get started on the work and another $4,000.00 in 90 days for a total contract of $10,000.00 over three months. You skim the agreement, gloss over the headings of the boilerplate terms (because they’re all the same, right?), sign it and send them the $6,000.00. Everything goes great at first, but months into the relationship, and dozens of calls later, you realize that Great Advertising Co. is flakey. They aren’t delivering the services on time, there is always an excuse for why the work isn’t done, but when the 90 days hits, they still ask for their additional $4,000.00 pursuant to the contract. The business relationship at this point has soured. Great Advertising Co. demands their additional $4,000.00 under the contract, which you refuse to pay, and you instead demand a refund of your $6,000.00. Great Advertising Co. refuses to refund you the $6,000.00. Pissed off, you take your story to your favorite business attorney in Arizona and she reviews your contract and advises you that while you may have a breach of contract claim, the terms of your contract say that you agree to litigate any matters stemming from the agreement in a court in New York and that because the contract is with Cool Business, LLC that you’d have to hire a lawyer, in the state of New York, to handle the matter for you because businesses have to be represented by a lawyer in the court that you’d have to file in. Knowing that New York lawyers can be very expensive, you decide it’s not worth the hassle and to cut your losses. Understandably being upset, however, you take to the Internet to tell everyone you know how, truthfully, Great Advertising Co. ripped you off and you explain in detail what happened. You post your reviews to Google, Yelp, Facebook and any other place you can find to help spread the word about these unscrupulous business tactics and you leave it at that. Ten months later you receive a letter from a Great Advertising Co.’s New York lawyer telling you that you need technically still owe the $4,000.00 under the contract and that Great Advertising Co. doesn’t appreciate the negative reviews and demands that you immediately remove them or they will file a lawsuit against you for defamation. You ignore the letter because you know that you have a good breach of contract case and the First Amendment on your side because what you said was 100% the truth and you know, after talking to your favorite defamation attorney a few years back, you know that the truth is a defense to a claim of defamation. A day prior to the one year anniversary of your pissed off customer online posting tirade you are served with a complaint, based out of New York for defamation. You’ve watched the Johnny Depp and Amber Heard defamation trial. You saw how long that case was drug out and you know that you don’t have the funds to pay an attorney to fight for your rights in New York. You didn’t even have the funds to hire a New York attorney to bring a breach of contract case against Great Advertising Co. to try and get your $6,000.00 back. As such, feeling defeated, and without talking to your favorite defamation attorney again, you just ignore the complaint. You figure, what’s the worst that can happen. Great Advertising Co. obtains a default judgment against you individually with an order to take down the content and the judge awards $2,500.00 in damages.

Now, this entire hypothetical, while obviously facts have been changed and such, is based off a true story of what one individual experienced and how these types of situations can go south in a hurry. There are countless similar stories just like this out there. Good folks are victimized not just once, by the initial acts, but twice in some instances like in this hypothetical. But this is where good anti-SLAPP laws come into play.

Anti-SLAPP laws are designed to fight back against those who file lawsuits just to try and silence their critics, but without the promise of attorney fees and costs for the work, victims of little means are hard pressed to find lawyers willing to help (hence the hinderance to access to justice). The sad truth is that most lawyers (like most professions) cannot afford to work for free – being a professional is expensive and it’s not getting any cheaper. When anti-SLAPP laws include such fee provisions, it’s a lot easier for attorneys to consider taking on a SLAPP case, with low or no money down, case because they know they will get paid when they win. This is of course presuming it’s a deep pocket that filed the SLAPP in the first place because the reality is a judgment is only worth one’s ability to collect.

When anti-SLAPP laws fail to include such provisions, there is little deterrent to filing a SLAPP suit. Yes, if the little person being picked on has means, maybe they will think twice but that’s not often the case and the SLAPP filers know, and bank on, the litigation causing financial hardship or stress so that the truth teller will simply give in to the demands to remove the content prior to even answering the complaint, thus chilling truthful speech. It’s a powerful tactic. If it wasn’t, there wouldn’t be so many states with anti-SLAPP laws trying to curb such problems in the first place.

As many legal practitioners are painfully aware, it can be very difficult to get a judge to award attorneys fees and costs absent it being statutorily required. So even if you fight against a SLAPP suit, and win, you could still be out tens of thousands of dollars (or more depending on the case) with no guarantee of recovery. As an attorney, when you have to tell potential clients this, you can see the defeat in people’s faces before you even get going. It’s scary. What average person has tens of thousands of dollars laying around to pay to a lawyer to fight for their First Amendment right to free speech?

Would those odds make you excited about standing up for yourself? I think not. If you knew all this, would you be so willing to share with the public honest information about bad actors and you personal experience? I think not.

And this doesn’t just go for complaining consumers, but also for investigative journalists. If you think a random, but bigger company, going after an unhappy customer who got ripped off is bad and complained about it is bad … imagine what a powerful elite will try to do to an investigative journalist trying to uncover some very serious dirty laundry and expose it to the world?

Bottom line, for any anti-SLAPP law to be a true shield, among other things, it must contain, at minimum, a statutory award of attorney fees and costs.

Disclaimer: This is for general information purposes only and none of this is meant to be legal advice and should not be relied upon as legal advice.

#firstamendment #defamation #antiSLAPP #legislation #accesstojustice

“Internet Law” explained

For some reason, every time one says “lawyer” people tend to think of criminal law, family law or personal injury law.  Perhaps because those are very common.  Most people even understand the concept of a corporate or business lawyer, someone who handles trust and estates, or even one that handles intellectual property.  However, when we say “Internet Law” many people get the most confused look on their face and say: “What the heck is that?” If that is you, you’re in good company.  And, to be fair, the Internet really hasn’t been around all that long.

If you were to read the “IT law” page on Wikipedia you’d see a section related to “Internet Law” but even that page falls a little short on a solid explanation – mostly because the law that surrounds the Internet is incredibly vast and is always evolving.

When we refer to “Internet Law” we are really talking about how varying legal principles and surrounding legislation influence and govern the internet, and it’s use.  For example, “Internet Law” can incorporate many different areas of law such as privacy law, contract law and intellectual property law…all which were developed before the internet was even a thing.  You also have to think how the Internet is global and how laws and application of those laws can vary by jurisdiction.

Internet Law can include the following:

  • Laws relating to website design
  • Laws relating to online speech and censorship of the same
  • Laws relating to how trademarks are used online
  • Laws relating to what rights a copyright holder may have when their images or other content is placed and used online
  • Laws relating to Internet Service Providers and what liabilities they may have based upon data they process or store or what their users do on their platforms
  • Laws relating to resolving conflicts over domain names
  • Laws relating to advertisements on websites, through apps, and through email
  • Laws relating to how goods and services are sold online

As you can see just from the few examples listed above, a lot goes into “Internet Law” and many Internet Law attorneys will pick only a few of these areas to focus on because it can be a challenge just to keep up.  Indeed, unlike other areas of law, “Internet Law” is not static and is always evolving.

Do you think you have an Internet Law related question? If you are in the state of Arizona and are looking for that solid “friend in the lawyering business” consider Beebe Law, PLLC!  We truly enjoy helping our  business and individual clients and strive to meet and exceed their goals!  Contact us today.

All information contained in this blog (www.beebelawpllc.blog.com) is meant to be for general informational purposes only and should not be misconstrued as legal advice or relied upon.  All legal questions should be directed to a licensed attorney in your jurisdiction.

 

 

 

 

Your Kids Cyber-bullying? Eventually You Could be Held Responsible.

In my blog series Fighting Fair on the Internet I have been writing in general about the varying problems I see with use of the internet.  After all, given my unique position and area of law I work in, I have had the opportunity to see all kinds of situations that most people never even think about.  Seriously – the good, bad, and the ugly – I see all of it.  And why do I write about it?  Because everyday I see people making stupid mistakes that eventually end up coming back to haunt them in one way or another and because I think education on these issues, raising awareness, plays a key part in reducing the amount of problems I see.

A colleague of mine showed me an NBC Miami article where Central Florida attorney Mark O’Mara was considering writing law that would give law enforcement officials the ability hold parents accountable for the bad things their kids were doing online.  In response to an arrest back in 2013 of two girls in a Florida bullying and suicide investigation, attorney O’Mara wrote on his blog:

The question is this: is their ignorance and apathy about their daughter’s cyber-bullying criminal? Under our current laws, it looks like the answer is “no.” Should that sort of willful blindness or gross negligence be criminal? I think it should, and here’s why: if a child kills someone while operating a parent’s car, the parents can be held responsible. If a child kills someone while using a parent’s gun, the parent can be held responsible. If a child breaks the law using a computer or cellphone provided by the parent, how is that different?

If you ask me, I am already all for harsher punishment for internet defamers and harassers so his argument makes sense.  That is, of course, so long as the punishment is reasonable but yet has enough teeth to ensure that parents actually monitor and pay some level of attention to what their kids are doing online.  If you are a parent, you SHOULD be monitoring what your kids are doing – not just to keep yourself out of trouble but to protect your child from all the dangers online (physical, mental, and legal).

After my first presentation to high school students regarding internet use and the repercussions from the same, it was abundantly clear that a lot more education was needed.  I went as far as explaining to the students that after my presentation they probably knew more than their parents did – after all, most of us old enough to have teenagers really didn’t have internet growing up and we especially didn’t have social media.  I encouraged students to go home and talk with their parents about what they learned…because not all advice that kids get from their parents is the best – especially when it comes to online issues.

As some food for thought, according to the Cyberbullying Research Institute, 48 states, plus Washington, DC, have laws that include cyber-bullying or online harassment.  Out of those states, 44 of them have criminal sanctions for cyber-bullying or electronic harassment.  Some information regarding the different state laws on these issues can be found here.  Similarly, just remember that “anonymous” doesn’t really mean “anonymous.”  In most cases, your identifying information is only one or two well written subpoenas away.

Long story short, with the continuing increase of use of the internet, don’t be surprised when laws start being enacted to hold parents liable for the wrongs of their children.  Want to be proactive and learn more for yourself, your kids, or even for a group?  Contact me!  See my contact page for more information.

Have thoughts on this to share?  Share them in the comments below!

 

 

Fighting Fair on The Internet: Part 4 | Crossing the Line Online – Don’t be THAT Guy!

If you have been keeping up with this Fighting Fair on the Internet blog series (Part 1, Part 2, Part 3 you are already aware that I think that most of the issues we see happening today are due to the increased use of technology, the loss of real human connection, and that so many people give opinions that really are nothing more than a “turd trophy” and should be “flushed” down the proverbial toilet.  So many people have developed some odd level of narcissism wherein they feel compelled to step into a conversation, not involving them, and render some kind of a comment, often from a place of needing to be “right,” that really does nothing but perpetuate negativity in one form or another.  This type of action is akin to the bumbling belligerent drunk guy (or girl) at the bar who walks up to a table of friends having a conversation and adding in his/her “two cents” (that’s my sarcastic way of saying the person said something offensive) based on a single sentence that was overheard.  No one really likes THAT person at that point in time.  After all, no one asked stumbling Captain Drunko, who might smell like a soggy bar towel, to come interrupt the conversation to give his polished turd trophy of an opinion…and a lot of times either THAT person ends up getting kicked out of the bar, getting their butt kicked, or THAT person feels like a total d-bag the next day once his/her friends informs him/her of the prior nights “entertainment.”  Maybe you have seen THAT person before.  Maybe you have even been THAT person a time or two.  Perhaps you have been on both sides of that coin in the past.  Regardless, and I pass no judgment here – crap happens, but you know what I am talking about.

Just as there can be consequences for being a belligerent and obnoxious drunk person at a bar (getting 86’d, getting your butt kicked, having the law get involved and possibly having to pay fines, and what I call “fool’s remorse”) there can also be very similar consequences for what you write on the internet.  I am not going to touch on the problems that can arise for people who get online and write a truthful account of a situation; that, along with many other issues, are for later parts to this series.  What I am going to get into here, in a very broad sense, is what can happen when you cross the line when posting online.

GETTING 86’D:  So you spout off and you get “kicked out” of the joint.  This seems like the least of potential problematic ramifications and maybe you don’t care if you get banned from a particular chat room or social media outlet.  In today’s technological world, chances are you’d just find a way around the system anyway.  I personally can think of many options and a lot of them are hard for any typical website administrator to actually detect and keep up with.  Nevertheless, if you have spent a lot of time building up friends, connections, adding photos or other content that may no longer be on your computer/phone, etc. this might be detrimental to you.  That cute picture of you and granny that you posted to your private account before she passed away or that video of that baby’s first steps…GONE FOREVER…if you do something that results in your account being suspended.

GETTING YOUR BUTT KICKED:  Just like the drunkard at the bar who gets out of hand with the wrong people can wind up on the receiving end of a serious butt kicking, when you get online and start spouting off, you never really know who you are spouting off to and what kind of a person they are.  It’s made even worse if you are like most people and don’t control your security settings on your social media very well.  Chances are you give out WAY too much information about yourself.  That is another topic for another day.  Nevertheless, you would be surprised at how much information people can gather from the tid-bits that people just leave open to public access.  What happens if you spout off and the person happens to be some major creeper with bad intentions?  They figure out who you are, who your friend and family are, and eventually where you all work and live.  Are you okay with that?  Okay…for all you tough guys out there saying you’d just meet them at the door and shoot them (hey, I support the Second Amendment too)…let’s be real here.  There is always the possibility that someone could come find you, or your unsuspecting family, and do something.  There is enough chaos on the news to prove that there are crazy people out there willing to go to drastic extremes.  I don’t know that I need to go on here…you all get my point.

THE LAW:  This is the one that I see the most of due to the nature of my position in the legal field.  If you get all worked up about something and then get online to spout off, especially if you embellish the story or otherwise purposefully tell a lie as a way to “get even” with someone for something, chances are, eventually, you are going to have to face some legal consequences for that.  Generally speaking, unless the account you give is opinion or is 100% the truth, what you say “can and will be held against you in a court of law.”  The most common cases in these situations are defamation actions that may be associated with additional causes of action depending on what you say.  Yes, there are defenses to defamation actions (truth and opinion being a few of them) however, so many people seemingly are confused about the difference between a statement of fact and an opinion.  Just because you say “In my opinion…” and then go on to make some sort of allegation doesn’t necessarily make that statement an opinion.  Remember, you have the right to free speech, but that is not absolute.  Just as you can’t run into a movie theater and yell “fire!” you can’t commit defamation without a very real potential for legal consequences…typically expensive ones.  You work hard for your money…do you really want to have to give it to the person, and their attorneys, that you were mad at in the first place?

FOOL’S REMORSE:  We have all done something at one or another that we aren’t exactly proud of.  It’s even worse if whatever occurred happened in public.  There is a reason that a lot of us “older kids” say that we are sure glad that were were “young and dumb” before smart phones and social media were around.  No seriously, it’s true!  Some things just DON’T need to make it to the public!  This whole “social media” thing has become, well, too social.  It  seems like long gone are the days of keeping “dirty laundry” in the hamper where it belongs.  Now, if you have a dispute with someone, chances are, for better or worse, someone, somewhere is going to talk about it on the internet.  Further, now with the ease and convenience of being able to post online under the perceived cloak of “anonymity,” more and more people are openly hanging out their dirty laundry for everyone to see.  Hell hath no furry like the wrath of an angry ex…ex-boyfriend/girlfriend,  ex-husband/wife, ex-business partner, etc.  Instead of dealing with matters in private, people are now dragging their disputes online and saying things, usually based on emotion at the time, that can be very hurtful.  To top it off, once something is up online, depending on where you put it, it can be very difficult, if not impossible, to remove.  Well, what happens when your feelings for that person change?  You know, like after you have had the time to calm down and truly get over those feelings?  If you are the “normal” person, whatever that means, you are probably going to feel bad about it…but you may not be able to rectify that situation.  Then, not only is the person that you decided to spew emotional word vomit all over feeling the pain, you are too.  It’s just not worth it!

This obviously has been a brief overview, however, I think it will probably resonate with many.  There are so many people going out and “running at the mouth” online before they really take time to consider the consequences of their actions.  These rants can impact not only you, but those around you.  Remember friends, in this context, temporary solutions can become permanent problems.  If you REALLY need to get something off of your chest, and want to write about it, go “old school” and grab a pen and paper!  Not only will you get the cathartic release from being able to get those emotions out on paper but it will also help keep you from getting into trouble.  You can always toss the paper in the trash when that emotion dissipates…  If that doesn’t work, save yourself a lot of grief by talking to a friend or family member that is going to help you calm down and steer you in a positive direction…  Oh, and watch out for those “friends” that want to instigate and entice you into being THAT guy.  In our bar scenario from above…that would be the friend that likes to order you shot after shot, get you riled up and push you into the crowd just to see “what happens.”  Yeah…that “good time Charlie” probably isn’t the right person to go to when you need this kind of help.

Until next time friends…

P.S. – If any of this resonates with you, or you agree with that I have said, please consider sharing this article and/or leave me a comment.  I’d love to hear your feedback and/or about your personal experiences.