Bloggers may not always be allowed to post negative reviews about businesses.

            The courts may not protect people who post negative postings of businesses on the internet. Deciding whether the business owner can stop negative postings will depend on the corporate structure of the business, according to one recent Appellate Court.

            In Summit Bank v. Robert Rogers, the Appellate Court sided with the blogger, who posted negative comments about a publicly traded bank. The blogger worked for the bank until he resigned. The bank sued for defamation and the blogger filed what is referred to as an Anti-SLAPP Motion to strike the lawsuit. The blogger filed the motion claiming his posts were protected speech because issues surrounding the bank were of “public interest”. (See CCP Section 425.16)

            In analyzing the phrase “public interest”, the Appellate Court initially held that the phrase “public interest” is not defined by the statute (CCP Section 425.16). In the absence of a statutory definition, the Appeals Court applied existing case law and held that comments, positive or negative, about a business were of “public interest” if the blogger who posted the negative comments can prove that (1) the company is publicly traded (2) the number of investors and (3) whether the company promotes itself with numerous press releases. See Ampex Corp. v. Cargle (2005) 128 Cal.app.4^th 1569, 1576.

            Here, according to the Appellate Court, the postings were of public interest because the blogger could prove all three factors with conclusive evidence. The bank was publicly traded; the bank had investors; and the officers/executives issued many press releases promoting their publicly traded bank to attract more investors. The Appellate Court also noted that a public concern was the recent bank meltdowns going on throughout the country. Therefore, the public had even a stronger interest in the solvency of banks.

            In the end, the Appellate Court sided with the blogger. Although the Appellate Court, in Summit Bank, sided with the blogger and held the postings were protected speech, it appears the Appellate Court took that position because the blogger could prove the 3 factors listed above. The blogger had the burden of proof, which is not something to quickly overlook. One view to take from this opinion is that if your business is not publicly traded, does not have many investors, and you do not issue numerous press releases, a court may decide that the negative postings on the internet about that business are not of public interest and not protected speech. Whether or not the bank could prove a probability of success on the merits and whether the postings are defamatory are separate questions.