In 2010, Justin Kurtz’ car was towed from his apartment parking lot despite his permit to park there 24/7. Outraged at having to pay an $118 ransom to get it back, he created a Facebook group: Kalamazoo Residents against T&J Towing. Within almost two days, people had joined the group, some posting comments about their own maddening experiences with the company. This opened Justin up to an aggressive lawsuit that “SLAPPed him silly”. T&J filed a defamation suit against him, claiming the group was hurting business; and was seeking $750,000 in damages. Unfortunately, the Kurtz case was just the legal tempest before the flood.

Websites, such as Facebook, Twitter and Yelp provide Internet forums for users to air, among other things, opinions and grievances about companies and individuals. Legal experts note the soaring popularity of such forums has given rise to a deluge of cases similar to T&J Towing v. Kurtz, in which the plaintiffs sues users for posting critical comments online. Not very long ago, if you opined at the neighborhood tavern or in a telephone conversation, it seldom went “beyond the sound of your voice”; and there was rarely a record left behind for future reference. Now, there’s an irretrievable, irrefutable, and virtually non-retractable, globally expanding record to consider before posting; and, as a result, every new media user is currently risking getting SLAPPed just like Justin Kurtz when they vent online.

SLAPP is a legal acronym for: “Strategic Lawsuit Against Public Participation,” referring to meritless lawsuits, filed solely to punish, bully and/or financially intimidate an opining user into silence. A SLAPP in the new media realm generally occurs when a party posts something critical or negative about someone or something, such as a business, on an Internet forum. Being concerned about damage to finances and reputation, the offended party sues the publisher, hoping the impending lawsuit will intimidate the would-be defendant into silence by removing the post or group from the internet – even though his/her right to free speech still remains constitutionally protected under the First Amendment. Quashing new media free speech in this way – known as “chilling” or having a “chilling effect” – is an abject dismissal and disdainful affront to every user’s First Amendment rights. As New York Supreme Court Judge J. Nicholas Colabella observed about SLAPPs almost two decades ago: “Short of a gun to the head, a greater threat to First Amendment expression can scarcely be imagined.”

 

Be honest with yourself: Have you ever posted anything critical or unflattering about a business or person on an Internet forum, such as Facebook, Twitter, or Yelp? It maybe wise to think about it twice next time. But having to question whether you can publish anything, without fear of being dragged into court with every post, is the very legal crux of our new media dilemma; and it goes to the very heart of protecting every user’s First Amendment rights. Proliferating SLAPP attacks on Internet users, attempting to silence them and, hence, chilling new media free speech warrants extension of First Amendment protection; and provides compelling reason for passing federal anti-SLAPP legislation.

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About Author

Jenna Sleefe is an in-house attorney for Internet Brands, Inc. Jenna's practice focuses on website aquisitions and privacy law. Jenna has experience drafting and negotiating various types of website agreements, advising clients on rights acquisition agreements and options, reviewing DMCA complaints, preparing and negotiating joint promotion alliances, clearing advertising copy and advising clients on contest and sweepstakes promotions, performing diligence in connection with mergers and acquisitions in the entertainment industry, forming limited liability companies and drafting operating agreements, and analyzing issues arising under online privacy and terms of use policies.

  • http://www.theaccordance.com Joseph Mainwaring

    What was the outcome of the Kurtz case?

  • http://streamindustry.com Jenna Sleefe

    The case was ultimately dropped by T&J Towing. Make any assumptions you want, but my take is there was too much bad publicity from the suit.