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Bloggers Beware: The Washington Court of Appeals Indicates That You Can Be Held Liable For What You Say Online

July 15th, 2015

In today’s technological world, it is easier than ever to voice your opinion in a way that can reach an audience around the globe. Every day, millions of new blog posts are made, including this one. But, with the ease of disseminating information at your fingertips, also comes the often unexpected potential for lawsuits. While the First Amendment affords bloggers a right to say what they want online, it does not provide them with blanket protection from being sued for their comments.

 

Recently, Division Three of the Washington State Court of Appeals published a decision that could change the future of blogging. In Johnson v. Ryan, the Court heard a case involving a defendant blogger, James Ryan, who after being terminated, began a public internet campaign to discredit his previous employer, the Spokane Civic Theatre’s executive artistic director, Yvonne Johnson. His blog, entitled “thetyrannyofyvonne,” chronicled at length his ongoing post-employment dispute with the plaintiff. The blogger went further and obtained the domain names of “spokanecivictheater.org” and “spokanecivictheatre.org.” The Theatre’s domain address was “spokanecivictheatre.com.” The similarity caused confusion for those who were attempting to view the Theatre’s website and anyone who mistakenly selected one of his created addresses was immediately routed by Ryan’s design to his sites where he had posted the negative statements about Johnson. One set of comments that the plaintiff pointed out was especially concerning was one where Ryan directed those interested in hiring Johnson for a job to contact him and he would refer them to others who can lend support to what he has indicated on his blog. After years of this blogging, the plaintiff filed suit against the blogger for tortious interference with business expectancy and defamation.

 

The blogger defended the suit, in part, by asserting the anti-SLAPP statute. As provided for in that statute, Ryan filed a prediscovery motion to strike. He argued that his online postings did nothing more than provide a public forum for discussion, commentary, complaints and general information related to the Theatre. He also asserted that his online speech was protected speech because it addressed matters of public concern. Johnson sought damages as well as injunctive relief. Johnson countered that the postings were merely a private concern and not protected by the statute. The trial court granted Ryan’s motion after concluding that his online blogging activity addressed speech on a matter of public concern. Johnson appealed the decision.

 

In order to understand the details of this case, it is helpful to understand the background and details of the anti-SLAPP statute. In 1989, Washington adopted the nation’s first anti-SLAPP (Strategic Lawsuit Against Public Participation. RCW 4.24.510) law to provide immunity from civil liability for claims that were based on good-faith communication with the government regarding matters of public concern. In 2010, the Washington Legislature expanded on this by passing the Act Limiting Strategic Lawsuits Against Public Participation in order to protect the free expression of Washington citizens by shielding them from meritless lawsuits designed only to incur costs and chill future expression. The Act declares that the legislature is concerned about lawsuits being brought simply to chill the valid exercise of one’s constitutional rights, but also goes on to say that it is in the public interest for citizens to participate in matters of public concern and provide information to public entities and other citizens on public issues that affect them without fear of reprisal through abuse of the judicial process. (Laws of 2010, ch. 118, section 1).

 

The new addition to the law allows a party to bring a special motion to strike any claim that is based on an “action involving public participation and petition,” however it requires bloggers and others disseminating information to show that the claim against them is actually targeting such activity. If they succeed, the burden then shifts to the other party to establish by clear and convincing evidence their probability of prevailing on their claim. Since RCW 4.24.525 provides an expedited summary judgment procedure, courts apply summary judgment standards when ruling on these motions. Thus, the trial court must view the facts and all reasonable inferences in the light most favorable to the plaintiff.

 

Only certain communications involving public participation and petition are protected by the statute. This includes any written statement or other document submitted in a public forum in connection with an issue of public concern. Courts have previously determined that the Internet is, in fact, a public forum. The Court indicated that speech is of public concern when it can be fairly considered as relating to any matter of political, social, or other concern to the community. They add that a public interest does not simply equate with mere curiosity. The matter of public interest should be something that is of concern to a substantial number of people. Thus, a matter of concern to the speaker and a relatively small, specific audience will not be considered to be a matter of public interest. There also needs to be some degree of closeness between the challenged statements and the asserted public interest. The assertion of a broad and amorphous public interest is not sufficient. The focus of the speaker’s conduct also should be the public interest rather than a mere effort to gather ammunition for another private controversy. And finally, those charged with defamation cannot, by their own conduct, create their own defense by making the claimant a public figure.

 

Specifically in the context of employment, whether an employee’s speech addresses a matter of public concern is determined by the content, form and context of the statement, as revealed by the whole record. Washington courts have indicated that content is the most important factor. The speaker’s intent is also to be considered. Courts will consider whether the employee was acting as an aggrieved employee, attempting to rectify problems in their working environment, or if they were acting as a concerned citizen bringing a wrong to light. Washington courts further supported the proposition that speech that only tangentially implicates a public issue is not a matter of public concern. When allegations referring to arguably protected activity are only incidental to a cause of action based essentially on nonprotected activity, collateral allusions to protected activity should not subject that cause of action to the anti-SLAPP statute.

 

In addition to considering what their intent and motive are in writing their posts, bloggers need to be sure to ask themselves, is the content, form, and context of their speech primarily of a private or public concern? By examining the primary content, form and context, the court has balanced the rights of both litigants so that the expedited summary process is weeding out only those defamation claims that are brought for the primary purpose of chilling valid free public speech.

 

In the case at hand, the primary content of Ryan’s speech was a lengthy and tedious chronology of a private dispute between himself and Johnson, his former boss. It was obvious that his primary intent was not to inform the public about an important public issue, but simply to complain about the fact that he felt he was wrongfully terminated. The issue arose out of a private employment dispute, his complaints center around how he was wrongfully terminated and what he has endured throughout the process. The court pointed out that the mere fact that these dominant themes are occasionally interspersed with collateral issues of protected public speech, is not enough to transform this private dispute into a matter of public concern.

 

In an age where millions of people are blogging every day, it is important to be cognizant of the great impact and lasting effect that your words could have. Famous author Jodi Picoult said it best, “Words are like eggs dropped from great heights; you can no more call them back than ignore the mess they leave when they fall.”

 

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