Posters of Negative Online Review Prevail
Read the full decision: Kruger v. Daniel
In Kruger v. Daniel, a Washington appellate court determined that a defamation lawsuit brought against the posters of a negative online review of a real estate broker should be considered for dismissal under the terms of a state law designed to protect freedom of speech.
Jeff Daniel (“Broker”), a Washington real estate broker, served as the listing and selling broker for a homebuilding company owned by Jeffrey and Renee Kruger (“Posters”). In 2010, Broker and Posters terminated their business relationship after a dispute over Broker’s representation of other homebuilders. In 2011, Posters wrote a scathing review of Broker on Zillow.com (“Website”), stating that they would never recommend Broker’s services, and calling into question Broker’s ethics and business practices. The posting remained viewable on Website for several days, until Broker was alerted to it by a colleague and successfully petitioned Website to remove the content.
Broker filed suit against Posters, alleging defamation, unfair competition, and intentional interference with business relationships. In response to the lawsuit, Posters filed a special motion under Washington’s “anti-SLAPP” statute, a law designed to help defendants defeat “Strategic Lawsuits Against Public Participation” -- in other words, abusive and meritless lawsuits filed with the intention of drowning defendants in court costs and silencing their future expression.
In order to successfully defeat a lawsuit by means of the anti-SLAPP statute, a defendant must show that the lawsuit is based on communication that (1) took place in a public forum and (2) involved an issue “of public concern.” The trial court denied Posters’ anti-SLAPP motion, stating that their posting “does not pertain to a matter of public concern, but appears to be a personal dispute as a result of a failed business relationship between the parties.”
The appellate court disagreed. In ruling that Posters’ anti-SLAPP motion should be remanded to the trial court for further consideration, the appellate court stated that “[t]he public has a significant interest in the conduct of real estate professionals, who often conduct their business in the capacity of a fiduciary,” and that Posters’ review was therefore directly connected to an issue of public concern.
In attempting to overcome the anti-SLAPP motion, and presumably because Broker represented other homebuilders, Broker contended that a statement made by a business competitor with the intention of harming a rival should not be considered a protected “issue of public concern.” In making this argument, Broker looked to California’s anti-SLAPP statute, which, while similar to Washington’s, had been recently amended to exclude from its protection a business’s statements about competitors. While the appellate court agreed that “the Act can be abused and that shielding unfounded attacks by competitors can be a prime vehicle for that abuse,” because Washington’s anti-SLAPP statute did not contain a carve-out for business competitors, Broker’s argument was moot.
Upon remand to the trial court, Broker must show “by clear and convincing evidence” the probability that he will prevail in his claims against Posters. If he is unable to do so, the case against Posters will be dismissed. This article will be updated as further information regarding the court’s final ruling becomes available.
Kruger v. Daniel, No. 43155-6-II, 2013 WL 5339143 (Wash. Ct. App. 2013). [This is a citation to a Westlaw document. Westlaw is a subscription, online legal research service. If an official reporter citation should become available for this case, the citation will be updated to reflect this information].
Editor’s Note: In 2015, the Washington Supreme Court declared the state’s broad anti-SLAPP statute unconstitutional. Following this decision, the Broker’s lawsuit is now proceeding in the trial court without consideration of the anti-SLAPP law.
NAR Legal Affairs would like to thank Jeff Daniels for alerting us to this development.