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IP: Consumer reviews may be protected by anti-SLAPP laws

Anti-SLAPP laws should serve to further give a potential plaintiff pause when considering a civil action for negative online reviews and comments

Online consumer reviews are the second most trusted form of advertising, second only to “earned media” such as word-of-mouth and recommendations from friends and family, according to a recent Nielsen report. Managing a company’s online reputation understandably is of prime importance, but one of the challenges of doing so is how best to mitigate damage from a negative consumer review or comment without further harming the brand. Overcoming this challenge is made more difficult by the tendency of some to pursue legal action as a first course of action rather than as a last resort. A growing body of case law should serve as a warning, however, to companies considering litigation to combat negative online traffic.

A strategic lawsuit against public participation (SLAPP) is a “meritless lawsuit filed primarily to chill the defendant’s exercise of First Amendment Rights,” as written in Paulus v. Bob Lynch Ford. The majority of states in the U.S. have enacted anti-SLAPP legislation. Early anti-SLAPP efforts focused on lawsuits involving communications made to influence a government action or outcome filed against nongovernmental individual or organizations. Anti-SLAPP laws are being applied increasingly in the context of commercial litigation involving claims of defamation, e.g., trade libel, or tortious interference with business relationship or expectancy.

Contributing Author

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Michael Smith

Michael T. Smith is of counsel at Birch Stewart Kolasch & Birch. He has practiced in the intellectual property field since 2001, focusing his practice...

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