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Anti-SLAPP Dismissal

Rubbing salt into the wounds of Internet defamation

by Michael Roberts -- Internet libel Litigation and Digital Forensics Consultant

A Strategic Lawsuit Against Public Participation (SLAPP) is a lawsuit filed by a well financed plaintiff that is intended to censor, intimidate and silence critics by burdening them with the cost of a litigation expenses until they give up on their their critical comments or opposition.

In such cases the plaintiffs do not necessarily expect to prevail in their litigation. Instead, they hope to accomplish their goals if the defendant succumbs to fear, intimidation, mounting legal costs and exhaustion; thereby abandoning their public criticism. A SLAPP will also intimidate others from participating in the debate.

Unfortunately, too often legitimate Internet libel and defamation lawsuits are dismissed by judges in those states that have anti-SLAPP legislation; not so much because of a lack of credibility, but poor planning by the plaintiffs and their attorneys.

To rub salt into the wounds, an anti-SLAPP dismissal is often accompanied by an order for the plaintiff to pay the legal expenses of the defendant. Consequently, not only has the defendant destroyed the reputation of the victim, the victim has had to pay his or her own legal expenses as well as the defendant's.

Prudent preparation is the key

The risks of anti-lapp dismissal of e-slander lawsuits can be mitigated with some sensible preparation and digital forensic investigations before filing the lawsuit. This is particularly true of cases which involve anonymous antagonists such as bloggers and message board posters. Too often plaintiffs and their attorneys think that it is only possible to identify anonymous bloggers through court subpoena; this is far from the truth. In fact, Rexxfield has an 85% success rate of positively identifying such people. Sometimes we do need to resort to subpoena as a last resort, but we are often able to save tens of thousands of dollars in litigation fees, as well as significantly reducing the risk of dismissal by identifying anonymous Internet users involved in the case through out-of-court techniques.

perishable evidence

Another very important consideration for Internet defamation lawsuits is the fact that the digital artifacts and evidence required to positively identify the author of libelous statements are often deleted by Internet service providers after six months. This is long before the statute of limitations expires. Read more..........

States with Anti-LAPP Legislation:

(in alphabetical order)
Source: Jacquelyn Kline, Legal Project Intern
January 14, 2009

Arizona: The Public Participation in Government was signed into law April 28, 2006. ARIZ. REV. STAT. ANN. §§ 12-751 - 12-752 (2009).

Arkansas: The Citizen Participation in Government Act was signed into law April 11, 2005. ARK. CODE ANN. §§ 16-63-501 - 16-63-508 (2009)

California: California's Claim Arising from Person's Exercise of Constitutional Right of Petition or Free Speech – Special Motion to Strike law was enacted in 1993. ANN.CAL.C.C.P. §425.16.

Delaware: Delaware enacted the Actions involving Public Petition and Participation, Standards for Motion to Dismiss and Summary Judgment in Certain Cases Involving Public Petition and Participation and Recovery of Damages in Actions Involving Public Petition and Participation. DEL. CODE. ANN. tit. 10 §§ 8136-8138 (2009).

Florida: FLA. STAT. §§ 768.295, 720.304(4)

Georgia: Exercise of rights of freedom of speech and right to petition government for redress of grievances; legislative findings; verification of claims; definitions; procedure on motions; exception GA. CODE ANN § 9-11-11.1 (2008)

Hawaii: HAW. Rev. Stat Vol. 13 §§634F-1 – 634F-4 (2002)

Illinois: 735 ILL. COMP. STAT. 110/1, 110/5, 110/10, 110/15, 110/20, 110/25, 110/30, 110/35, 110/99 (2008).

Indiana: Chapter 7. Defense in Civil Actions Against Persons Who Act in Furtherance of the Person's Right of Petition or Free Speech Under the Constitution of the United States or the Constitution of the State of Indiana in Connection with a Public Issue. IND CODE §§ 34-7-7-1 – 34-7-7-10 (2008).

Louisiana: Special Motion to Strike. LA. CODE CIV. PROC. ANN. art. 971 (2008)

Maine: Special Motion to Dismiss. ME. REV. STAT. ANN. tit. 14 § 556 (2008).

Maryland: Strategic Lawsuits Against Public Participation. MD. CODE ANN. § 5-807 (2008).

Massachusetts: Strategic Litigation Against Public Participation: Special Motion To Dismiss. MASS. GEN. LAWS. ANN. ch. 231 § 59H (2008).

Minnesota: Declaratory, Corrective, Administrative Remedies. Free Speech; Participation in Government. MINN. STAT. §§ 554.01 – 554.05 (2008).

Missouri: 537.528. Actions for damages for conduct or speech at public hearings and meetings to be considered on expedited basis-procedural issues. MO. REV. STAT. § 537-528.1-7 (2008).

Nebraska: NEB. REV. STAT. §§ 25-21,241- 25-21,246 (2008).

Nevada: Nevada's anti-SLAPP statute was enacted in 1993 and amended in 1997. NEV. REV. STAT. §§ 41.635 – 41.670 (2008).

New Mexico: New Mexico's anti-SLAPP law was enacted in April of 2001. N.M. STAT. ANN. §§ 38-2-9.1 – 38-2-9.2 (2008).

New York: N.Y. CIV. RIGHTS 70-a; 76-a (2008); N.Y. C.P.L.R 3211(g); 3212(h) (2009)

Oklahoma: Privileged Communications defined –Exemption from Libel. OKLA. STAT. tit. 12, chap. 25 § 1443.1 (2008)

Oregon: OR. REV. STAT. §§ 31.150 – 31.155 (2008).

Pennsylvania: 27 PA. CONS. STAT §§ 7707 – 7708 (2008); 27 PA. CONS. STAT §§ 8301 – 8305 (2008).

Rhode Island: R.I. GEN. LAWS §§ 9-33-1 – 9-33-4 (2008); R.I. GEN. LAWS § 45-24-67 (2008);

Tennessee: TENN. CODE. ANN. §§ 4-21-1001 – 4-21-1004 (2009).

Utah: UTAH CODE ANN. §§ 78B-6-1401 – 78B-6-1405 (2008)

Washington: Good faith communication to government agency-When agency or attorney general may defend against lawsuit- Costs and fees. WASH. REV. CODE § 4.24.520 (2008).

States with Judicial Doctrine on SLAPPs (No Statute)

West Virginia: There was no evidence of anti-SLAPP bills, but there have been several cases. Webb v. Fury ( 282 S.E.2d 28); Harris v. Adkins (432 S.E.2d 549)

States with Anti-SLAPP Bills (Current or Previous)

Colorado: Colorado's Sixty-third General Assembly's House Bill 02-1192 was introduced in 2002. The bill was read three times, with the third reading effectively stalling the bill.

Connecticut: Connecticut's 1991 Raised Bill 7374 and 1993 House Bill 1026, Senate Bill 182, and Senate Bill 248 all failed.

Kansas: Kansas' 1997 Senate Bill No. 287 was pulled by Senator Clark in March of 1998 because the proposed amendments by the state bar association would have made the bill essentially non-effective.

Michigan: Senate Bill 1195 was introduced in May of 2004. House Bill 4709 was introduced in April 29, 1997 and referred to the Consumer Protection Committee, where a substitute bill was referred to the Judiciary Committee. However, the bill was never taken up by the Judiciary Committee.

New Hampshire: Senate Bill 661 was introduced in 1994. The state senate then requested the state supreme court's opinion whether the bill was consistent with the state constitution. The court responded that it was not. Opinion of the Justices (SLAPP Suit Procedure)(641 A.2d 1012)

New Jersey: New Jersey does not have an anti-SLAP statute, although there were bills introduced in 1998 (Senate Bill No. 745) and in 1996 (Assembly Bill 1545). However, the New Jersey Courts have been sympathetic to those impacted by SLAPPs. As a result, the courts have allowed a defendant who successfully defeats a SLAPP-type suit to seek damages from the SLAPP filer on a claim of malicious use of process.

Texas: Texas has had numerous attempts at passing some type of anti-SLAPP laws. House Bill 1319 passed in the House of Representative, but not the Senate. Another bill passed the House State Affairs Committee, but died for lack of action because there were so many other bills pending at the end of the regular session.

In 1999, House Bill 2488 also failed in the Senate. In 2001 the same bill was reintroduced, but was not reported out of the House Civil Practices Committee. Another anti-SLAPP bill, House Bill 2723 did pass, but was vetoed by the governor on June 17, 2001.

House Bill 2267 was introduced in March 2003. Although the bill was passed out of the House Civil Practices Committee, but did not make it further.

House Bill 329 was cancelled in 2005 by Representative Joe Nixon.

Virginia: Virginia's Senate Bill 424 from 1992 and 1993 failed.

Note: No information on North Carolina was located.

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