New York’s Anti-SLAPP Amendment

One year ago this month, New York expanded a law to regulate defamation claims using an amendment to the State’s already standing anti-SLAPP (anti-strategic litigation against public participation) law.  The amendment was instituted to discourage nuisance-based defamation claims and lawsuits, primarily made to harass, annoy, or require a defendant to incur legal fees, when the statement(s) are “involving public petition and participation.”  The new anti-SLAPP amendment has longstanding and far-reaching impact as it relates to slander, libel, and overall defamation claims.  The law not only impacts matters not yet pending or actions that have not occurred yet, but also retroactively effects defamation actions.  Most notably, the new anti-SLAPP amendment raises the burden placed on a plaintiff when pursuing a slander, libel, or defamation claim that involves “any communication in a place open to the public or a public forum, in connection with an issue of public interest” or “any other lawful conduct in furtherance of the exercise of the constitutional right of free speech in connection with an issue of public interest . . .” N.Y. Civ. Rights Law § 79-a(1)(a)(1)-(2).

The new anti-SLAPP expansion’s main focus is to broaden the ability for anyone, whether it be an individual or a company, to engage in free speech without the fear of being subjected to litigation.  To accomplish this, the new expansion not only makes the burden of proof on the Plaintiff to show “actual malice” on the part of the defendant when making the utterance, but also attaches prescribed penalties against a plaintiff who loses on a motion to dismiss.  When a defendant succeeds on a motion to dismiss a SLAPP suit, which is achieved by showing that the action involved “public petition and participation,” the court is bound to prescribe damages against the plaintiff in the form of attorney’s fees and costs.  Additionally, defendants can also recover compensatory damages in addition to fees and costs, by showing that the plaintiff brought the case primarily to harass or intimidate, as well as punitive damages if those reasons were the sole purpose for bringing the suit.  For a plaintiff to get past the motion to dismiss after a defendant shows this, they must show either a substantial basis in law or that there is a substantial argument for an extension of the existing law.

Regarding libel suits, the “actual malice” standard requires a showing that in cases regarding public participation, that the defendant made the statement either knowing it was false, or with reckless disregard, as in without caring if the statement was actual true or false. This effectively changes the standard for a libel lawsuit against a private person to that of a public official or a public figure.  Nonetheless, it is still possible to meet this burden, although it has been raised.

If you have questions about the new anti-Slapp litigation, we can help.  To discuss your situation or to speak to an attorney familiar with workplace rights, contact Borrelli & Associates, P.L.L.C. to schedule a free consultation through one of our websites, www.employmentlawyernewyork.com, www.516abogado.com, or any of our phone numbers: (516) 871-4267, (516) ABOGADO, or (212) 679-5000.