The rise of defamation suits in the Internet age
On a sunny day in San Jose, California, Liliana Guerrero was in crisis mode. Her cat Rosie had been struck by a car and its health was in grave condition. She needed to get to a vet ASAP. She found Arch Veterinary Services online and brought Rosie in, pleading through tears for them to save Rosie. The staff looked at Lily - a 22-year-old Latina - with judgment, something Lily would later describe “as if I wouldn’t be able to afford their services.” The vet took a look at Rosie and confirmed the worst: Rosie’s injuries were too great, and Lily had to decide whether to pay the vet to put her down now or take her back and let her pass naturally. The staff member brusquely told her that she would either need to pay the $300 to put Rosie down or take Rosie back.
Lily paid the $300 fee and put Rosie to rest.
Fast forward 24 hours. Lily is fuming over how she was treated by Arch. She felt that they were nonempathetic, unfriendly, and rude. How could she voice these concerns so others knew what to expect from them? Lily did what many consumers do when dissatisfied: she took to Yelp to describe her experience, leaving Arch a fiery, one-star review stating that the clinic was “unprofessional,” “horrendous,” and “treated me and my family poorly.” She crossposted her review to Twitter where it began trending. Soon, Internet grassroots warriors bombarded Arch with one-star reviews on Yelp and Google. Some even made harassive phone calls to Arch’s office.
Fast forward 72 hours. Lily gets a phone call from Tal Solomon - owner and Veterinarian of Arch - demanding that she take down her posts or he wouldn’t hesitate to take legal action against her. Lily - content with her impact - obliged to take the posts down.
A month later, she is served with a lawsuit from Arch Vet claiming that she defamed them. They seek $100,000 in damages.
As the public square turns increasingly digital, one’s voice can have an outsized impact relative to pre-tech days. It’s no longer necessary to go door-to-door or be platformed by a major media organization to reach thousands of people. Anyone with a smartphone and access to social media can potentially reach millions.
With such power comes great responsibility, and also lawsuits.
Indeed, Internet-based defamation cases are on the rise. As a lawyer for content creators, about a fifth of my practice revolves around defamation - either defending a client from the claim or initiating a demand letter process against an offender. In Lily’s case, I helped defend her from Arch’s lawsuit, successfully dismissing the case using an anti-SLAPP motion.
Defamation suits are particularly important for content creators because of how important creator’s reputations are in their work. All it takes is one “cancelable” moment - including being badmouthed by someone on social media - for a creator to lose popularity, followers, and even brand deals overnight. Additionally, many creators earn their reputation by telling truth and holding other creators accountable when they spread false information. Such creators’ careers are premised on the legal system’s support for their work, namely that if they are sued for defamation the law will protect their right to speak truth (and in some cases, opinion).
But herein lies the problem. Even if the law protects the right to speak truth or opinion, it doesn’t prevent folks from initiating lawsuits that can make life living hell for the speaker, regardless of the eventual outcome. The stress of ongoing litigation can be ruinous for mental health, and the legal fees - even for a simple anti-SLAPP motion - are well into the tens of thousands. In Lily’s case I was fortunate to pair up with a co-counsel who was also willing to take the case pro bono (with compensation due only on a victorious anti-SLAPP motion). But many clients are afraid of the stress of a lawsuit and prospect of paying thousands of dollars in damages on top of lawyer fees, so they opt to settle, usually by agreeing to take down their alleged defamatory posts. Take Sean SV, a prominent creator on Tiktok with over 1.5 million followers, who was served a cease and desist by fellow creator Robert Love after speaking out about Mr. Love’s educational credentials. Sean didn’t want to deal with the stress of a lawsuit so he took down his posts even though he knew them to be truthful.
It’s unclear if there’s a solution to this. After all, threats of litigation exist in all areas of law, and defamation is no different. But with how much ongoing debate there is on truth itself in the sociopolitical sphere, it’s pertinent that the legal system protect individuals speaking it. And if you choose to exercise your own First Amendment rights to speak up on social media - you should be prepared to come with receipts for claims made - even for something as innocuous as a Yelp review.
