Yesterday I gave a short statement to the Nevada Assembly Judiciary Committee regarding a bill making its way through the legislature, Senate Bill 444. Before I include it here, I wanted to give some background information that I think would be useful to fellow bloggers.
Generally, defamation is a term used to include publication of spoken (spoken) or written (libel) words that are false. So, in theory, if you wrote something false about someone on your blog, they might have a cause of action in court against you for defamation. There are specific rules beyond that but as a rule of thumb, as a blogger, you want to be writing things that are truthful (and, given FTC rules, not likely to cause confusion). Easy enough, right?
Strategic Lawsuit Against Public Participation
There is a lot of nuance to a successful defamation claim, but I always caution people that just because you’re in the right at the end of the day, it doesn’t mean someone can’t drag you into court. Because of the risk of plaintiffs with deep pockets (able to pay legal fees, etc. even though they may not actually have a chance at winning) filing suits (or threatening them) just to get content they don’t like removed, some states have made laws to protect against them. These laws are called anti-SLAPP laws.
In Nevada, there has been a form of an anti-SLAPP law on the books since the late 1990s but in 2013 the law was made stronger. Among other things, a defendant in a defamation suit can file an anti-SLAPP motion within 60 days of being served with a defamation complaint and challenge the plaintiff to show their case is legitimate. This is a pretty neat framework because in Nevada if you wanted to write a review about a restaurant that hadn’t accommodated your allergies safely or perhaps refused service because of allergies, the restaurant would need to think twice before trying to make you remove the review or suing you. If they did sue, you’d be able to have a remedy for having to hire an attorney to help you (if the anti-SLAPP motion was successful).
Nevada Senate Bill 444
The bill currently before the Assembly in Nevada would shorten the time a defendant has to bring an anti-SLAPP suit and also limit the types of speech protected. It would also change the penalty framework that has been in place since 2013. I read the following yesterday before the Assembly Judiciary Committee and I think it highlights how the food allergy community is impacted when it comes to being willing to share stories and concerns online. The unique thing these days is that where you might have told a few friends about an experience in the past, now when you share information online it is going to make its way back to the company you’re talking about and they might not be happy.
As an example, a blogger who goes by the moniker “Gluten Dude” recently wrote a post about Udi’s Bread (a gluten free bread on which many with celiac disease and food allergies rely). He used photos of bread that people have purchased that have holes in them and wrote about trying to reach out to the company about what people are reporting to him. Like many bloggers, he is using the reach of his readership to magnify a message and get the attention of a large company. This is the kind of grassroots coverage of an issue that bloggers try to offer that contributes positively to the community at large.
Looking further at the connection between free speech and online content, we have sites like AllergyEats and apps like YoDish specifically catering to the food allergy community. They encourage honest feedback about dining experiences, so we know there’s an interest in getting good information. And then there are mainstream review sites like Yelp that can make or break a reputation.
Remember, through all of this, that there is always a party to a lawsuit more prepared for the road ahead. I recall in a mediation course in law school that this comes up even in the divorce context because one person has already come to terms with a decision even as the other may still be reeling and that changes the balance for negotiation. In Nevada a plaintiff has two years to sue, but the defendant may not even be aware the suit is coming. At any rate, all things to keep in mind when considering whether a potentially unjustified defamation suit is going to have a chilling effect on blogging, reviews, and even comments on facebook.
This is also relevant for journalists, as you can see in the picture below John L. Smith from the Las Vegas Review Journal offering his testimony against the bill.
I have been in the little teleconference room once before regarding a guardianship bill (you can read more about that here) – you can see to the left the committee members in Carson City. Another time I offered testimony was when an interim committee was sitting in Las Vegas and I was in the audience for a similar interim committee in town last year. I have to credit the stock epinephrine legislative process with giving me the courage to take on opportunities to offer my two cents in the legislative process. Thank you, Caroline for the encouragement on all things legislative! At any rate, here are my notes going into my testimony:
My Prepared Remarks
Good morning to the Chair and members of the committee. My name is Homa Woodrum and I’m an attorney in Las Vegas. I’ve lived in Nevada for 15 years in both Las Vegas, and (a point of pride having lived both north and south) in Winnemucca.
Though my practice largely focuses on elder law and guardianship, I am also a food allergy blogger and co-founder of the Allergy Law Project – a blog with a focus on disability rights related to individuals with food allergies. I mention this because the intersection of being an attorney and being a part of an online community results in contacts who reach out to me when they receive requests to remove content on personal blogs. These individuals wonder about their rights but may opt to take down information rather than wrangle threatened, just threatened, legal action.
Other individuals contact me after anaphylactic reactions wondering what they can and can’t say about their experiences out of a desire to keep others in the specific food allergy community safe. A mother whose son was served real milk instead of soy milk, a college student served his allergen by a barista, a visitor to Las Vegas for a convention served nuts and left to administer his own epinephrine by hotel staff…every single one of these individuals opted not to share their stories because of the commonly held notion that you can’t speak out about companies with big pockets without risking suit. With SB 444 as written, I would have to advise them all that the risks are too high.
A suit can still be filed and the expense of a defense incurred even if you’ll ultimately prevail. I am here to add my voice because I think this is an access to justice issue. I imagine some attorneys would see SB444 as job security, but I for one would rather see continued protective measures available to those who would be crushed by the expense of defending litigation.
A plaintiff always has a choice and can do a cost-benefit analysis before initiating suit. NRS 41.670 is, I submit, a necessity in the digital era. As a Nevadan, and attorney, and, though I bristle at the term, a “mommy blogger,” I thank you for your time and urge you to reject SB444.
Have you ever decided not to write about something because you didn’t want to face someone else’s reaction? Have you been asked to pull a blog post, or edit it, by someone else?
Remember, of course, that what I’ve discussed here is related to work that is original to you – if you’ve used a photo without credit or have copied and pasted someone else’s work, you’re treading into copyright issues (also, just don’t do that sort of thing!). A request to remove content may be related to that content having been stolen but a truthful review of a product or experience may, depending on your state (Washington, for example, has anti-SLAPP laws on the books), have a little more protection than you thought before.
Hopefully Nevada can keep its reputation for strong anti-SLAPP protection!