Wednesday, September 16, 2015

SLAPPing a Cybersquat

Collier v. Harris, No. G048735 (D4d3 Sept. 1, 2015)

In connection with a hotly disputed school board election in a tony part of the OC, a supporter of one bloc of candidates allegedly did some cybersquatting. She bought some Internet domain names that appeared to refer to the opposing bloc’s agenda and then used them to redirect traffic to her own bloc’s websites. An activist from the opposing side sued, alleging claims for invasion of privacy, false impersonation, and the illegal use of an Internet domain name. Defendant responded with an anti-SLAPP motion, arguing that registering a domain name in connection with a political campaign was an act in furtherance of free speech protected under Code of Civil Procedure § 425.16(e)(4). The trial court denied the motion because, as it saw the facts, the claims arose from the misleading redirection of Internet traffic and not from any speech itself.

The threshold question on appeal is whether registering domain names is conduct in furtherance of free speech. Since the act of registration is not a speech act in itself, the claim here is encompassed by the anti-SLAPP statute only if it falls under the catchall provision of § 425.16(e)(4), which protects any other conduct in furtherance of the exercise of” the rights of free speech or petitioning. Relying on a line of cases that read (e)(4) as reaching conduct that generally facilitates speech or petitioning, the court holds that it is. Registering the domain names helps advance or assists in the exercise of the defendant’s core protected speech related to the election.

Plaintiff doesn’t contest this point very hard. Instead, she argues that because the acts at issue in the complaint are criminally unlawful, the anti-SLAPP statute just doesn’t apply. Outside of a narrow exception for conduct that is criminal as a matter of law that is subject to an exception under Flatley v. Mauro, the “arising from protected activity” test generally doesn’t take into account whether the alleged conduct is civilly and criminally legal or not. Citing a handful of cases, the court explains that “courts have consistently held acts a plaintiff alleges are unlawful or illegal are nonetheless protected activity under the anti-SLAPP statute if the acts assist or facilitate the defendant’s free speech rights.” (citing Lieberman v. KCOP Television, Inc., 110 Cal. App. 4th 156, 164 (2003) (“arising from” test satisfied by patient’s surreptitious video recording of doctor for use in a news story); and Doe v. Gangland Prods., Inc., 730 F.3d 946, 954 (9th Cir. 2013) (“arising from” test satisfied by use of plaintiffs’ unconcealed image in violation of right of publicity and agreement not to publicly disclose identity in connection with news broadcast).

That’s a generally accurate description of some of the case law. But it does not address bunch of cases that—outside of the Flatley exception—hold that the “arising from” test isn’t satisfied by illegal-seeming and underhanded conduct accomplished with the intent of furthering litigation or electoral activity. See, e.g., Renewable Res. Coal., Inc. v. Pebble Mines Corp., 218 Cal. App. 4th 384 (2013) (bribery), Malin v. Singer, 217 Cal. App. 4th 1283, 1302 (2013) (wiretapping and computer hacking), and Gerbosi v. Gaims, Weil, West & Epstein, LLP, 193 Cal. App. 4th 435, 446 (2011) (wiretapping). As I keep pointing out, there’s a big split on this issue. But for whatever reason, the courts have been adamant in refusing to acknowledge it

In any event, plaintiff did not meet the burden of showing that the conduct was criminal as a matter of law, so as to fall within Flatley’s illegal as a matter of law exception. Although the conduct here might have been misleading about the source of the URL’s, it did not, as a matter of law arise to the level of falsely impersonating the opposing candidates as prohibited under Penal Code § 529. Nor did it violate any of the other Penal Code provisions cited by Defendants, which all required intimidation, treats or fraud. And as to alleged violations of other civil statutes, courts have read Flatley’s exception to apply only to conduct that is actually criminal, not just subject to civil liability.

As such, the court finds that the trial court erred in holding that the first-prong of the anti-SLAPP analysis wasn’t satisfied. It thus reverses and remands to the trial court for a determination of whether plaintiff can establish a likelihood of success on the merits.

Reversed.

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