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User Comments On A Public Interest Website Do Not Violate Website’s User Agreement

The Appeals Court for the Fourth District Court of Appeals in California affirmed the special motion to strike a plaintiff’s complaint for being barred under the anti-SLAAP statute.  Hupp v. Freedom Communications, Inc., Case No. #-57390 (Cal. 4th DCA, November 7, 2013) (available here).  Plaintiff Paul Hupp sued Defendant Freedom Communications, Inc., dba The Orange County Register (“the Register”), alleging breach of the Register’s user agreement with Hupp when the Register failed to remove comments on its website regarding Hupp.  The Register filed a special motion to strike (anti-SLAPP) and the lower court granted the motion to strike Hupp’s complaint.  Hupp appealed, arguing that his lawsuit is a standard breach of contract action not subject to an anti-SLAPP motion.

In March 2012, the Register published an article on its website concerning public safety pensions in Orange County, California.  Many readers, including Hupp, posted comments on the article.  A large portion of the comments were between Hupp and Defendant Mike Bishop.  The Register argued that Hupp complained to the author of the article about five postings by Bishop and demanded that they be removed.  Hupp argued that the Register violated its user agreement by making public comments and failing to remove the comments about Hupp.  He argued that the comments invaded his right of privacy, harassed him, and were harmful to him.  The Register’s User Agreement states that interactive areas of the Register’s website are provided to the users as a way for users to express their opinions and share ideas and information.  The User Agreement also stated that users who used the interactive areas, and that the Register reserved the right, but undertakes no duty, to review, edit, move, or delete any user generated content in its sole discretion.

The Register filed an anti-SLAAP motion under Code of Civil Procedure Section 425.16, which authorizes such a motion “against a person arising from any act of that person in furtherance of the person’s right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue . . . .”  Code of Civil Procedure Section 425.16(b)(1).  The statute is meant to be construed broadly, and the anti-SLAAP motion must be granted unless a plaintiff can show that there is a probability for plaintiff to prevail on the claim.  A SLAAP lawsuit is a civil lawsuit aimed to bring an economic advantage to the plaintiff over the defendant, not a lawsuit brought to vindicate a legally cognizable right of the plaintiff.  “While Hupp’s complaint does not generally fit the above description of a typical SLAPP suit, it is subject to an anti-SLAPP motion if it fits within the statutory definition, which includes having the purpose of punishing the Register for exercising its free speech rights. Hupp’s appeal on this point provides only two sentences of argument and does not address the issues presented by the trial court’s decision.”  Hupp, Slip Op. P. 5.

The Court first had to determine whether the Register made the required showing that Hupp’s complaint arose from a protected activity.  If so, then the Court would consider whether Hupp had demonstrated a probability of prevailing on his claim.  The Register argued that its actions arise from acts in furtherance of its free speech rights.  The Register argued that its maintenance of the website, which publishes public interest articles and allows user comments, facilitates free speech, and allows for the exchange of ideas and opinions.  The California Supreme Court has held that publicly available websites are public forums for purposes of anti-SLAAP motions.  Barrett v. Rosenthal, 40 Cal.4th 33, 41, fn. 4, (2006).  The comments between Hupp and Bishop began as a conversation about the pension article posted on the Register’s website.  However, Bishop then asked Hupp if he was a vexatious litigant, stating that he had searched for Hupp on Google, and that Hupp was the subject of discussion on other websites.  To support this, the Register submitted to the Court an appendix of 145 pages of lawsuit related documents concerning Hupp.  The Register argued that the subject of vexatious litigants is an issue of public  interest.  The Court concluded that the Register’s actions were in furtherance of its free speech rights.  “Maintaining a forum for discussion of issues of public interest is a quintessential way to facilitate rights, and the Register has no liability for doing so.”  Hupp, Slip Op. P. 8.

The Court extended this holding to find that Hupp had not shown any probability of prevailing in this action.  Hupp had failed to present any argument on the issue, and thus his lawsuit is barred.  As a result, the Court affirmed the lower court’s granting of the Register’s anti-SLAAP motion.

Hupp then argued that there was an issue with document service.  Hupp filed his complaint on March 22, 2012 and the Register was served on July 2, 2012.  The Register had 30 days to respond, and on July 24, 2012, it filed an ex parte motion for an extension in order to file its anti-SLAAP motion.  The motion was granted, and Hupp acknowledged receipt of the order on July, 30, 2012.  On August 31, 2012, the Register filed the anti-SLAAP motion, the hearing was set for September 28, 2012, and on September 13, 2012 the process server filed an amended proof of service stating that the original had inadvertent incorrect information, and that service was completed by leaving copies of the documents with the security guard at the front gate of Hupp’s residential community.  This is a permissible means of service in California.  Hupp filed a declaration by the secuirty guard, who stated that he turned the process server away and did not receive any documents.  Hupp filed his motion to strike the anti-SLAAP motion on September 24, 2012 for improper service, however he acknowledged receipt of the Register’s motion on September 13, 2012.  Counsel for the Register moved for a continuance, which was granted, and the anti-SLAAP motion was heard on October 18, 2012.  The lower court granted the anti-SLAAP motion.  The Court concluded that Hupp had admitted to receiving the Register’s motion on September 13, 2012, and therefore he had 34 days before the rescheduled hearing on October 18, and had actual notice of the action in time to defend against the anti-SLAAP motion.  As a result, the Register complied with all service requirements.

The Court affirmed the lower court’s order granting the Register’s anti-SLAAP motion to strike Hupp’s complaint.

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