The Texas Citizens Participation Act (TCPA)

With the rise of many online review services (think Yelp!, Google+, Facebook, and others) many businesses are faced with an onslaught of potentially negative hits to its public image. Bad online reviews can have a significant impact on the business’ ability to recruit new customers. As a result, business disparagement lawsuits have risen dramatically over the last few years. But, what if a consumer has a legitimate complaint against a company but gets sued for voicing his or her thoughts online.

The Texas legislature has taken steps to protect individual use of free speech. On June 17, 2011, the Texas Citizens Participation Act (TCPA) was signed into law, expanding the first amendment protections of Texas Citizens. The TCPA, also known as the Texas Anti-SLAPP[1] statute, was created with the purpose to encourage and safeguard the constitutional rights of citizens to petition, speak freely, and associate freely, without fear of retaliatory lawsuits intended to restrict their ability to exercise their first amendment rights.

Located in Chapter 27 of the Texas Civil Practice & Remedies Code, the TCPA allows an individual or organization facing a frivolous lawsuit the ability to quickly resolve the issue. The Texas legislature created the TCPA to defend individuals and organizations from any lawsuit that impinges on their constitutional rights to petition, association, and free speech. All you need to do is file a motion to dismiss, or an “anti-SLAPP motion”, which the court must rule on within 60 days after the motion is served.

In the seven years since the TCPA was signed into law, it has become a persuasive deterrent against SLAPP lawsuits, allowing individuals to speak more freely on issues related to public concern. This includes discussing goods or services they obtained in the marketplace. The biggest deterrent for these disparagement lawsuits is the fee-shifting provisions contained in the TCPA. If the individual (the defendant the company is suing) is successful, the company filing the lawsuit must pay court costs, attorney fees, and other such expenses incurred from defending against the action. More importantly, the court must order a fine against the company that filed the disparagement claim “sufficient to deter the party who brought the legal action from bringing similar actions ….” So, not only is the company on the hook for all of the costs and attorneys’ fees, the company will have to pay additional fees which could amount to thousands of dollars in penalties.

In order to succeed on an anti-SLAPP motion to dismiss, the defendant (individual) must prove the plaintiff’s (company’s) lawsuit is based on, related to, or in response to the defendant’s exercise of the right of free speech, the right to petition, or the right of association.[2] If the defendant proves the action is related to one of those activities, the burden shifts to the plaintiff to establish that their claim is either exempt from the TCPA’s protection or prove by clear and specific evidence every element of its claim. If the plaintiff can’t prove its claims, the court must dismiss the action.

So, are companies left without any legal recourse in responding to bad reviews? The short answer is no. However, the company must be very careful to gather enough evidence regarding each element of its claims before filing suit to prevent facing the fees and fines associated with an anti-SLAPP motion.

The scope of interpretation and application of the TCPA is far-reaching, as it has been central to the dismissal of numerous cases, some of which include defamation claims, discrimination claims, and fraud[3] claims. This versatility of interpretation is because the rights described in the statute are broadly defined—making the TCPA’s potential applicability extensive. Specifically, the statute defines free speech to include speech about matters of public concern such as speech regarding a “good, product, or service in the marketplace.” This includes communication in an electronic format.

The TCPA’s breadth makes it wise for those considering taking legal action to first consult an attorney to determine if their claim is protected by the TCPA. Remember: the purpose of the TCPA is to “identify and dispose of lawsuits designed only to chill First Amendment rights”.[4] If your claim falls under the protections of the TCPA you should reconsider moving forward with your claim – you may be paying for the defendant’s court costs and attorney fees in addition to your own. Anyone who finds themselves party to one of these lawsuits as a defendant should also consult an attorney – you may be protected by the Texas Citizen Protection Act.