On November 30, 2023, the Colorado Court of Appeals in Tender Care v. Barnett tested the limits of Colorado’s anti-SLAPP law in considering whether an individual’s online review of a company could invoke the protections of the anti-SLAPP law.  A client of a veterinary clinic had posted six online reviews on her personal Facebook page, the company’s Facebook page, and four different community-based Facebook pages, asserting that the veterinary clinic engaged in “malpractice,” and employs “incompetent” and “dishonest” doctors and staff. The clinic had filed suit for defamation per se, and the individual posting about her experience filed a special motion to dismiss under the anti-SLAPP law.

“SLAPP” stands for Strategic Lawsuit Against Public Participation. While California has had a SLAPP statute in place for quite some time, Colorado only recently enacted an anti-SLAPP statute in 2019, section 13-20-1101, C.R.S. Colorado’s statute. Like California’s statute before it, Colorado’s version is intended to protect the right to free speech and petition, and to prohibit the filing of non-meritorious lawsuits merely aimed to silence critics. Colorado’s anti-SLAPP law allows defendants to file a “special motion to dismiss” based on the right of free speech or petition in connection with a public issue or an issue of public interest. Defendants must file the special motion within 63 days after service of the complaint unless a later filing date is deemed proper by the court, and a hearing will typically be scheduled within 28 days after service of the special motion. Such motions will be granted unless the plaintiff establishes a “reasonable likelihood” of success on the claim, in which case the matter proceeds as normal. In making its determination, the court will consider the pleadings and supporting and opposing affidavits stating the facts upon which the liability or defense is based.

In Tender Care, the individual defendants’ anti-SLAPP motion was denied for failure to establish that the statements addressed “matters of public interest or a public issue.” Defendants had argued that their statements qualify for anti-SLAPP protection because they conveyed important consumer information about the quality of veterinary services in a small, rural community, which they argued is a significant public issue or issue of public interest. The trial court disagreed, and concluded the statements are essentially customer complaints or a private business dispute, and were alleged facts regarding their individual customer experience.

The appellate panel agreed, finding “it is not enough that the statement refer to a subject of widespread public interest; the statement must in some manner itself contribute to the public debate.” The panel found that context must be considered in that determination. Here, the panel provided examples of public discussion about pet health care or connection to a broader issue of public concern, such as veterinary diagnostic issues, oversight of veterinarians, and the general quality of care for animals outside large cities. The panel concluded only 8 of the 37 statements made by the defendant related to her pet’s treatment and diagnosis, while the other 29 statements expressed her personal animosity towards the business. “[T]he vast majority of [defendants’] statements cannot be said to involve a ‘public issue’ or ‘issue of public interest’ because they weren’t directed at “‘seek[ing] public discussion of anything’; they appeared, instead, to be aimed at ‘whip[ping] up a crowd for vengeful retribution.’”  Such intent, the Colorado Court of Appeals held, was not protected by the anti-SLAPP statute. In short, “an attempt to exact a personal revenge’ by causing others to ostracize the target is not a protected public interest statement.”

What does this mean for Colorado employers?

Employers often wonder about their remedies when a disgruntled former employee takes to social media or other online forums to vent their frustration.  After Tender Care, Colorado employers now have one more data point related to their ability to address such conduct.  The Colorado Court of Appeals has now clarified that employers can seek legal protection and/or remedies against “vengeful” and unlawful posts.

Of course, many may question how this development squares with the Protecting Opportunities and Workers’ Rights (POWR) Act, section 24-34-407, or the National Labor Relations Board’s recent decision in McLaren Macomb. The answer is that a careful reading of both is consistent with the Tender Care decision: employees are not privileged to engage in false, defamatory, or disparaging statements reasonably calculated to harm the company’s reputation and reduce its income.  Stated differently, “revenge” is never a proper purpose under the law, and employers may still seek relief when employees go beyond voicing legitimate grievances about their workplace, including discriminatory or unfair employment practices. 

Employers facing damaging online conduct should consult experienced counsel to determine what rights they may have in response and, rather than suffer the community and marketplace harm, consider SLAPPing back and protecting their rights.