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Published: Tuesday, 6/15/2010

Free speech or defamation?

A Virginia man named Scott Roberts didn't like the decision by Kauffman Racing Equipment in Ohio's Knox County not to repay him the $2,900 he had spent on an engine block he alleged was defective. Like many other irate consumers in the digital age, he used the Internet to disparage the company and its product.

The Ohio Supreme Court ruled last week that Kauffman Racing can bring a business-defamation suit in Ohio against the out-of-state customer, arising from his critical remarks on several Web sites. Apart from the jurisdictional issue, the broader question is to what extent similar lawsuits could chill valid freedom of expression by intimidating actual or potential critics from speaking their minds.

Mr. Roberts is not a poster boy for the First Amendment. Kauffman says it refused the refund he demanded because he admitted modifying the engine he claimed was defective. He said in one online posting: "I plan to get a lot of mileage out of it." The company says he intended his online campaign to cost Kauffman money.

A lawyer for Kauffman says, correctly, that no one should have the right to injure the reputation of a business with impunity. But there are steps short of litigation that can allow a company to defend itself effectively in the court of public opinion.

Many companies make it a habit of responding promptly to online attacks in the same venues where they appear or on their own Web sites. Such factual presentations can stimulate further online discussion - precisely the way the Internet is supposed to work.

At the same time, though, a growing number of aggrieved companies are responding with lawsuits to negative online opinions by unhappy customers. No one would reasonably dispute that businesses should have recourse against accusations that are demonstrably false.

The problem arises when plaintiffs use lawsuits to try to suppress honest criticism as well. Such litigation is called SLAPP, short for "strategic lawsuit against public participation."

If critics decide the potential cost of defending themselves against potential litigation isn't worth it, other Internet users could be denied useful information simply because it might make a business uncomfortable.

On its face, the Kauffman suit does not appear to be a SLAPP. The state Supreme Court's ruling does not address the merits of Kauffman's case. Instead, it simply enables the company to pursue its litigation in Ohio.

Lawyers for Kauffman Racing and Mr. Roberts say they are negotiating an out-of-court settlement. It's to be hoped that the parties can reach an accommodation before a precedent is created that Ohioans who seek to exercise their free-speech rights might not like.



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