[author: Travis Crabtree]

Other than drawing more attention to the damaging online material, paying for a lawyer and having to answer uncomfortable questions under oath, what are the other risks about bringing a defamation claim?  If you are not careful, you could end up paying the defendants’ attorneys’ fees.

Twenty-seven states and the District of Columbia have passed Anti-SLAPP or “Anti Strategic Lawsuits Against Public Participation” legislation to deter the proliferation of defamation suits brought on by social media.  Texas passed its version in 2011 “to encourage and safeguard the constitutional rights of persons to petition, speak freely, associate freely, and otherwise participate in government to the maximum extent permitted by law and, at the same time, protect the rights of a person to file meritorious lawsuits for demonstrable injury.”  Tex. Civ. Prac. & Rem. Code § 27.002. 

So How Does it Work?

“If a legal action is based on, relates to, or is in response to a party’s exercise of the right of free speech, right to petition, or right of association, that party may file a motion to dismiss the legal action.”  Id. at 27.003(a).  “[A] court shall dismiss a legal action against the moving party if the moving party shows by a preponderance of the evidence that the legal action is based on, relates to, or is in response to the party’s exercise of: (1) the right of free speech; (2) the right to petition; or (3) the right of association.”  Id. at 27.005(b).  

Although cloaked in soaring Free Speech rhetoric, Anti-SLAPP statutes are primarily procedural and don’t provide another defense to meritorious defamation claim.  It can be a powerful procedural tool when the Defendant files a motion to dismiss on one of the three grounds stated above.  To overcome a motion to dismiss, the claimant must “establish[] by clear and specific evidence a prima facie case for each essential element of the claim in question.”  Id. at 27.005(c) (emphasis added).

Although not defined, it certainly means a defamation plainitff should be prepared to satisfy it immediately after filing his claim because discovery will be very limited.  The Anti-SLAPP law in Texas allows for a defendant to appeal a decision immediately if the trial court does not dismiss the suit which can slow down legal proceedings.

So What Happens?

If a defendant successfully dismissed the case, Texas courts are required to award the defendant “(1) court costs, reasonable attorney’s fees, and other expenses incurred in defending against the legal action as justice and equity may require; and (2) sanctions against the party who brought the legal action as the court determines sufficient to deter the party who brought the legal action from bringing similar actions described in this chapter.”  Id. at 27.009(a).  

For more on the Texas version, including examples of the new law in action, check out www.slappedintexas.com.

Special thanks to my colleague at Looper Reed Joe Virene who graciously allowed me to poach much of this information from his initial research.   

See part one on how to avoid litigation and be proactive to protect yourself online from libel.

See part two on how to unmask the anonymous online commenter or blogger.