The District of Columbia anti-SLAPP legislation just went into effect on 3/31/11. The new law was modeled after California's anti-SLAPP legislation with one added feature - a special motion to quash a subpoena seeking to discover the identity of online posters. California's anti-SLAPP laws are the strongest in the nation with this one loophole. Unlike the California law, the D.C. law makes attorney's fees to a prevailing SLAPP defendant merely discretionary instead of mandatory as it is in California. But the big strength of the D.C. statute is its provision for a special motion to quash subpoenas and other discovery in suits filed against "Doe" defendants who are alleged to have published defamatory material on the internet. California's anti-SLAPP laws (CCP 425.16, 425.17, 425.18) do not have any such special motion to quash provision and recent California case law has held that an anti-SLAPP motion cannot be used to challenge a motion or a subpoena that arises from the exercise of First Amendment speech or petition rights - SLAPP motions challenge only "causes of action" in a complaint, cross-complaint, or petition (CCP 425.16, subd. (h)). Moreover, because the anonymous online poster is named only as Doe and not as a named defendant, the anonymous poster served with a subpoena demanding production of their computer hard drive is defenseless for the poster cannot file an anti-SLAPP motion and stay the discovery until they are sued as a named defendant. So the discovery stay provision that benefits traditional SLAPP defendants who are named in the action provide no protection for the Doe defendant who happens to get served with a subpoena to produce such private and highly sensitive information. Subpoenas designed to disclose the identity of online posters can be highly intimidating to anonymous online posters because of the excessive scope, cost, and intrusiveness of such demands.
Th D.C. statute counters this problem by providing online posters with an additional weapon to combat SLAPPs - they special motion to quash a subpoena or discovery aimed at disclosing an anonymous poster's real identity. It is a burden shifting motion to quash that works similarly to the two step process of the anti-SLAPP motion. The plaintiff/propounding party must show a probability of prevailing on the claim and that such probability outweighs the intrusiveness of the discovery sought and the method used. If the plaintiff/propounding party is unsuccessful in meeting this burden, the anonymous poster can recover attorney's fees and costs.
Many public interest commentators have observed that the rise in web-based commentary and the ever increasing number of lawsuits that ensue are a motivating force behind many other states enacting their own anti-SLAPP legislation. Texas became the 30th state to adopt their own anti-SLAPP laws in June 2011. Another commentator found that with the explosion of the internet, there are many more of these sorts of suits. Moreover, anonymous posters now feel empowered to say things they wouldn't otherwise say. They don't often realize that their identities can be uncovered.
AGREE OR DISAGREE?? YOUR COMMENTS APPRECIATED. I THINK THIS IS SOMETHING OUR CALIFORNIA LEGISLATURE SHOULD SERIOUSLY CONSIDER.
Thursday, July 28, 2011
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