Perhaps the most significant (e)(4) Cyber-SLAPP defamation case this year is Summit Bank v. Rogers (2012) 206 Cal.App.4th 669. Rogers was a former VP at a community bank. The bank filed the SAC, the operative complaint, which alleged a single cause of action against Doe defendants for defamation based on anonymous internet posts on the "Rants & Raves section of Craigslist". The essential allegations were that "Doe defendants published false statements about the Bank with the intent to defame the Bank's good name and reputation." The Bank eventually learned Roger's identity after the court granted the Bank's request to serve a subpoena on Craigslist to discover the poster's identity. Rogers admitted he made the post but argued his posts concerned a matter of public interest under subdivision (e)(4) of section 425.16 - the Bank's financial condition. He further argued that the Bank could not prevail because his posts were unactionable opinion and the gist of his posts was substantially true. The posts in dispute read as follows:
"Being a stockholder of this screwed up Bank, this year there was no dividend paid. The bitch CEO that runs this Bank thinks that the Bank is her personal Bank [sic] to do with as she pleases. Time to replace her and her worthless son. ....
...What's up at this problem Bank. The CEO provides a [sic] executive position to her worthless, lazy fat ass son Steve Nelson. This should not be allowed. Move your account now. ...
...The FDIC and the California Department of Financial Institutions are looking at Summit Bank. This is the third time in less than a year. This is not a good thing, move your accounts ASAP. ...
...I banked at Summit Banks [sic[ Hayward Office. Service was poor and Summit Bank closed this office. Whats [sic] up with that. All the customer [sic] were left high and dry. This is a piss poor Bank. I would suggest that anyone that banks at Summit Bank leave before they close. Move your account now before it is too late."
Looks simple enough doesn't it. These posts concern a Bank's financial condition, which is clearly a matter of public interest under subdivision (e)(4) of Code of Civil Procedure Section 425.16. On prong two, it appears that these posts do not state facts that are provably false and, to the extent they do, they are substantially true. So where is the wrinkle? The Bank made a sound argument that although their defamation claim attacks defendant's speech made in connection with an issue of public interest, the posts were illegal as a matter as a matter of law because the posts violated Financial Code section 1327 on its face, which is a crime. FC 1327 was passed way back in 1907 as part of an overall plan to ensure the financial stability of Banks. FC 1327 makes it a crime to "make an untrue statement or rumor which is directly or by inference derogatory to a Bank's financial condition." Of course, the Bank relied on the illegality as a matter of law doctrine originally expounded by our High Court in Flatley v. Mauro (2006) 39 Cal.4th 299. Looking at the posts and squaring them up with the plain language of FC 1327, Roger's posts were, on their face, conclusively, and beyond any dispute, illegal as matter of criminal law. (See G.R. v. Intelligator (2010) 185 Cal.App.4th 606, which limited Flatley's illegality exemption to violations of criminal law.) The illegality doctrine is one the least understood and most overused arguments by plaintiffs to claim exemption from a SLAPP motion. It is most often unavailing because there is usually some factual dispute as to whether the defendant's speech or petition activity was illegal as a matter of criminal law. Here, however, the illegality exemption appears to apply on all fours and the Bank would have ordinarily prevailed and defeated Roger's SLAPP motion. But the Court of Appeal went further into the analysis and struck down the very basis of the Bank's illegality argument by ruling that FC 1327, on its face, violated the First Amendment to the United States Constitution on a number of grounds including: (1) FC 1327 is subject to strict scrutiny and constituted an impermissible content-based restriction on speech; (2) FC 1327 is unconstitutionally vague and overbroad. After an exhuastive analysis of First Amendment Constitutional and State defamation law, the Court of Appeal ruled that the Bank's SLAPP motion should be denied. The Court also went into a detailed analysis of the context of the posts on the internet, which were in a chat room specifically designed for former and current employees to "Rant & Rave" about their current or former bosses. Moreover, the mere fact that the posters on this message board like many others on the internet were anonymous makes it more likely that the challenged statements will be construed by the courts as unactionable opinion, hyperbole, rhetoric etc anonymous internet posts on message boards are not the place whether the average reader expects to find facts.
The next cyber-SLAPP defamation case to come down in October of 2012 is Chakker v. Mateo (filed 10/4/12 Case No. D058753) 2012 DJDAR 13830. Chakker built on the principles set forth in Summit Bank by recognizing that the internet as a whole is a public forum. Although subd. (e)(3) of section 425.16, which covers speech made in a public forum in connection with an issue of public interest, is now and has been entirely superfluous with respect to prong one of the anti-SLAPP analysis since subd. (e)(4), which covers speech made in connection with an issue of public interest (eliminating public forum requirement), was added to the statute in 1997 along with the broad construction requirement, Chakker has expressly made the public forum element potentially dispositive in SLAPP defamation cases involving internet speech on prong two. Among the factors considered by the Summit Bank Court, Chakker looked at the language and context of the posts on two internet chat rooms and held that the fact that the posts were made in an internet chat room open to the public makes the statements more likely to be treated as unactionable opinion rather than as provably false factual assertions. Chakker fathered a child with defendant's daughter, Nicole Mateo. The grandmother of the child, Wendy Mateo, made derogatory statements about Chakker's forensics business on one website where the public may comment on the reliability and honesty of various providers of goods and services and another post, derogatory of his character, on a social networking website, which provided an open forum for members of the public to comment on a variety of subjects. Chakker sued the grandmother for defamation. The posts, which refer to Chakker, read as follows:
"You should be scared. This guy is a criminal and a deadbeat Dad. As you can see, I am the child's grandma, so I know. If you should eve [sic] come across this person, be very careful. He may be taking steroids so who knows what could happen." "I would be very careful dealing with this guy. He uses people, is into illegal activities etc. I wouldn't let him into my house if I wanted to keep my possessions and my sanity."
Other statements accuse him of fraud, deceit, and picking up street walkers and homeless drug addicts.
First, the court went into an exhaustive analysis of why the internet as a whole is a public forum and why such statements are more likely to be treated as opinion. Then, the court noted that any internet posts commenting on the reliability or quality of goods or services on consumer review websites constitute issues of public interest. The free flow of consumer information is always an issue of public interest. So SLAPP applied under subd. (e)(4). As to the social networking site, the court used a vortex or public figure or "vortex" analysis to find that the posts about Chakker on the social networking site constitutes an issue of public interest to the other members on that site because Chakker posted his own profile on the "topix" site, which generated responses from othe rmembers to which defendant then responded with her own comments about Chakker's character - an issue of public interest to other members on the site who may be considering whether or not to interact with him. The court found again, based primarily on context, that the posts constituted speech in connection with an issue of public interest under subd. (e)(4) sufficient to trigger the anti-SLAPP provisions on prong one and found that the statements were unactionable opinion based primarily on the interactive internet context of the her posts both about Chakker's business and his personal character. The Court further noted that the language itself lacks the kind of formality and polish where a reader would expect to find facts and when coupled with the context of the internet chat rooms make the posts unactionable opinion. Finally, it is obvious to any reader that the posts were made by the jilted ex-girlfriend's mother and that she obviously had a proverbial "axe to grind" such that no reader would expect to find factual information or objective opinions in these posts.
Both Summit Bank and Chakker go through an exhaustive review of the anti-SLAPP, First Amendment, and defamation jurisprudence as applied to internet speech. They are great cases to read.
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