This is a case with a complex and somewhat unique history but it will still serve as a cautionary tale to any plaintiff wishing to bring a defamation claim, including businesses who believe negative and hurtful reviews may be untrue.
A Tarrant County District Court just awarded $1.3 million in sanctions against a plaintiff who had brought a lawsuit claiming defamation and cyberstalking against several defendants alleging they had posted threatening language against the plaintiff and his family. The plaintiff was James McGibney and his company ViaView Inc., which operates various websites that the Appellate Court described as “a forum for users to publically shame bullies, unfaithful paramours” and others for perceived wrongs. McGibney had also purchased revenge porn websites for the purpose of shutting them down. One defendant immediately sought protection from the Texas Anti-SLAPP statute that serves to protect online free speech and provides an opportunity for defendants to win a dismissal early in the case as well as obtain attorneys’ fees and sanctions against the plaintiff.
Legislatures across the Country have enacted “anti-SLAPP” statutes to protect online free speech in the ever-evolving internet age. Texas enacted its version of an anti-SLAPP statute in 2011, called the Texas Citizens Participation Act (“TCPA”), and it allows a defendant to file a motion to dismiss if a defamation lawsuit “is based on, relates to, or is in response” to the defendant’s right of free speech. If the defendant meets this burden by a preponderance of the evidence, the plaintiff then must show by clear and specific evidence a prima facie case on the claims in question. If the defendant is victorious with the anti-SLAPP motion, the Court must award attorneys’ fees as the Court finds reasonable. The Appellate Court in McGibney clarified that if a defendant is successful with its anti-SLAPP motion, sanctions against the plaintiff were mandatory and must be in an amount sufficient to deter the party who brought the action from bringing similar cases.
The trial court in McGibney initially allowed the plaintiff to nonsuit his claims rather than rule on defendant’s anti-SLAPP motion but the Appellate Court found the defendant was still entitled to a ruling on his anti-SLAPP motion for the purpose of obtaining attorney’s fees and sanctions. The Appellate Court further found the defendant did establish by a preponderance of the evidence that any statements he made were related to his right of free speech and the plaintiff did not respond with a prima facie case to show the statements were not protected free speech. Accordingly, the Appellate Court ordered the case remanded to the trial court to award reasonable attorney’s fees and mandatory sanctions- and what an award it was. The trial court found $300,000 reasonable for attorney’s fees because this was a heavily litigated case in a new area of law. The trial court further awarded $1 million for sanctions to discourage the plaintiff from filing similar claims based on the fact the plaintiff had filed other lawsuits in other jurisdictions.
This case is far more complicated than most that would involve a negative online review or internet posting but it shows the difficulty and complications that can arise in trying to sue over online content.