Defendants Use of Online Websites to Boycott a Local Business is not Protected by the anti-SLAPP Statute

January 25, 2013

Jill Colter suffered from brain cancer, which she disclosed to the plaintiff Clay Nissan before she was hired. Three weeks after she returned from a medical disability leave she was fired. According to Clay Nissan, the firing was for reasons wholly unrelated to her sickness. According to Jill's brothers, the defendants, Jill was fired because of her cancer. So the brothers did what most brothers do when they feel a sister is being bullied - protect their sister.

The Colter brothers started a ""Boycott Clay Nissan" Facebook page which had a related online petition that referenced a Facebook page. They also later started a Twitter account. All the online sites urged potential customers not to do business with Clay Nissan, and stated that Clay Nissan had a policy or practice of discriminating against cancer patients and were unethical. Any favorable comments posted to the sites about Clay Nissan were deleted by the Colter brothers.

The plaintiffs, who included Clay Nissan, its parent, and related corporations, sued the Colter brothers for defamation and intentional interference with advantageous relations.

The defendants filed a motion to dismiss on the ground that their activities and statements were protected by the anti-SLAPP statute because they were advocating on their sister's behalf to raise public awareness about the termination of Jill's employment by the plaintiffs and give their sister leverage for an employment discrimination suit against the plaintiffs.

The anti-SLAPP statute applies to civil claims that are based on a party's "exercise of its right of petition under the constitution of the United States or of the commonwealth ... petitioning includes all statements made to influence, inform, or at the very least, reach governmental bodies-either directly or indirectly." G.L. c. 231, § 59H. Speech and other communicative activities that are not made to influence, inform, or reach public officials are not protected by the anti-SLAPP statute. The Cadle Co. v. Schlichtmann, 448 Mass. 242, 250-252 (2007). This speech that is intended to achieve a purely commercial result, such as increasing demand for one's services.

The court held that the Colters' activities online and using social media to punish or pressure plaintiffs by organizing a boycott of a car dealership and by making, eliciting, and sharing comments critical of the plaintiffs' alleged employment policies, practices, and actions toward the Colters' sister were not an exercise of the Colters' right to petition government and thus are not protected by the anti-SLAPP statute. The defendants' motion to dismiss was denied.

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