Following on the heels of The Future of Reputation, Dan Solove’s cautionary tale of the internet, comes Eric Turkewitz’s post on Bidzirk v. Smith. This case involved an eBay reseller’s attempt to crush an unhappy customer who posted about his experience, only to find himself embroiled in defending his words against full blown federal litigation.
Smith, pro se, won the case, but at huge personal expense. While he is being hailed as a hero in the debate of whether bloggers are journalists and in standing up against those who would challenge our right to opine, there is no doubt that Smith would have much rather been able to say his piece and move on, without being involved in this nightmare or becoming anyone’s hero.
This dovetails nicely with the issues raised by Reputation about how the law should address postings on the web. What is missing from the Bidzirk case is a means by which Smith could go beyond the basic defense, and counter this suit with a counterclaim of his own. There was nothing there for Smith to make Bidzirk’s attempt to stifle commentary cost Bidzirk something for overreaching.
It occurs to me that this would be the perfect situation for an anti-SLAPP suit. SLAPP is an acronym for Strategic Lawsuit Against Public Participation, and refers to abusive lawsuits filed to impose a burden on an individual or group for exercising their right to challenge an action, generally an action involving an environmental issue. For example, a logging company would commence a SLAPP suit against an environmental group trying to save the spotted owl, since the logging concern has enough money and juice to destroy the underfunded environmental group merely by the initiation of litigation, despite the absence of merit to the cause.
What if blogging defendants are given a cause of action in response to lawsuits brought in retaliation for the exercise of legitimate free speech online, say with statutory damages of twice the ad damnum of the SLAPP suit plus attorneys fees? Would that do the trick?
But what of the legitimate lawsuit brought by the aggrieved plaintiff who was maligned by falsehoods, lies and malicious unjustified attacks? Then it wouldn’t be a SLAPP suit, and this plaintiff would prevail. But both sides would wield a potentially big club, keeping the online arms race in check.
So what do you think Dan? Am I onto something?
Smith, pro se, won the case, but at huge personal expense. While he is being hailed as a hero in the debate of whether bloggers are journalists and in standing up against those who would challenge our right to opine, there is no doubt that Smith would have much rather been able to say his piece and move on, without being involved in this nightmare or becoming anyone’s hero.
This dovetails nicely with the issues raised by Reputation about how the law should address postings on the web. What is missing from the Bidzirk case is a means by which Smith could go beyond the basic defense, and counter this suit with a counterclaim of his own. There was nothing there for Smith to make Bidzirk’s attempt to stifle commentary cost Bidzirk something for overreaching.
It occurs to me that this would be the perfect situation for an anti-SLAPP suit. SLAPP is an acronym for Strategic Lawsuit Against Public Participation, and refers to abusive lawsuits filed to impose a burden on an individual or group for exercising their right to challenge an action, generally an action involving an environmental issue. For example, a logging company would commence a SLAPP suit against an environmental group trying to save the spotted owl, since the logging concern has enough money and juice to destroy the underfunded environmental group merely by the initiation of litigation, despite the absence of merit to the cause.
What if blogging defendants are given a cause of action in response to lawsuits brought in retaliation for the exercise of legitimate free speech online, say with statutory damages of twice the ad damnum of the SLAPP suit plus attorneys fees? Would that do the trick?
But what of the legitimate lawsuit brought by the aggrieved plaintiff who was maligned by falsehoods, lies and malicious unjustified attacks? Then it wouldn’t be a SLAPP suit, and this plaintiff would prevail. But both sides would wield a potentially big club, keeping the online arms race in check.
So what do you think Dan? Am I onto something?
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