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Neff v. McGee

Court of Appeals of Georgia, Fifth Division

June 21, 2018

NEFF
v.
MCGEE.

          Ray, Judge.

         Christal McGee sued Michael Neff and his law firm, the Law Offices of Michael Lawson Neff, P. C., (collectively, "Neff"), for defamation arising from an article Neff posted to his law firm's website and for statements he made to other media outlets. The statements related to the dangers of Snapchat's Speed Filter and an automobile collision that occurred when McGee was allegedly using the Speed Filter to capture a photo documenting her high speed. Neff's clients were injured in the collision. Neff filed a motion to strike or dismiss the complaint under Georgia's anti-SLAPP statute, OCGA § 9-11-11.1. The trial court denied the motion, and Neff filed the instant appeal. As set forth in more detail hereinbelow, we reverse.

          On September 10, 2015, McGee crashed her car into the car driven by Wentworth Maynard. The Maynards hired Neff to represent them in litigation arising from the collision. In that action, the Maynards sued McGee and Snapchat, Inc., alleging that McGee was driving at an excessive speed as a result of her use of the Snapchat Speed Filter at the time of the collision.[1] Snapchat is an application made for mobile devices that allows users to take temporary photos and videos, also known as "Snaps, " and share them with friends. Snapchat creates "Filters" that allow users to include captions, drawings, and graphic overlays on a user's photos or videos. One of these filters is a speedometer that shows the speed at which a user is moving and allows for that speed to be superimposed to a Snap before sending it out over the application (the "Speed Filter").

         On November 24, 2015, Heather McCarty, one of McGee's passengers at the time of the collision, provided an affidavit to Neff. McCarty's affidavit stated, inter alia, the following:

I looked up and noticed that we seemed to be accelerating. I looked in the front and saw [McGee] holding her phone. The screen had a speed on it, which was about 80 m.p.h. and climbing. I asked [McGee] if her phone was keeping up with the speed of the car. [McGee] said it was. I told her I was pregnant and asked her to slow down. [McGee] responded and said that she was just trying to get the car to 100 m.p.h. to post it on Snapchat. She said "I'm about to post it." I began pleading with [McGee] to slow down. Just after I saw the speed of 113 m.p.h., a car pulled out of an apartment complex, and I screamed.

         Soon after the collision, McGee did post a Snap, not of her speed as shown on her car's dashboard, but showing blood on her face, with the caption "Lucky to be alive" imposed on the photo.

         As part of his investigation into the incident prior to filing suit, Neff hired an accident reconstructionist to examine the cars and the scene. In February 2016, the reconstructionist concluded in his report that McGee's car was traveling between 91 and 107 m.p.h. at the time of the collision. Based upon this report and McCarty's affidavit, the Maynards filed suit against Snapchat and McGee on April 20, 2016.

         On or about April 26, 2016, Neff posted an article about the case on his firm's website, along with a link to the Complaint. The article was titled "Lawsuit filed against Snapchat for Distracted Driving[, ]" and includes the following: a synopsis of the incident, including the description of McGee's use of Snapchat while driving, a statement about the dangers of distracted driving, a description of the "[R]ise of Snapchat[, ]" the public debate about the dangers of the Speed Filter, and a statement about the Maynards' lawsuit. Various news organizations also ran stories about the dangers of the Snapchat Speed Filter and referenced the Maynards' complaint. These articles cited to the Maynards' lawsuit and the article posted to Neff's law firm website.

         On April 11, 2017, McGee sued Neff for defamation and related claims based on the article on the Neff website and other statements he made. In response, Neff then filed a motion to strike and to dismiss McGee's lawsuit, arguing that the article was conditionally privileged pursuant to OCGA § 51-5-7 (4), (7) and OCGA § 9-11-11.1, and as a result, that McGee's lawsuit was subject to dismissal pursuant to Georgia's anti-SLAPP statute. The trial court denied the motion to dismiss, and Neff filed the instant appeal.

         We review de novo the trial court's denial of Neff's motion to dismiss. Rogers v. Dupree, 340 Ga.App. 811, 814 (2) (799 S.E.2d 1) (2017). Upon review of a trial court's denial of a motion to dismiss, "we construe the pleadings in the light most favorable to the plaintiff with any doubts resolved in the plaintiff's favor." (Citation and punctuation omitted.) Id.

         A "strategic lawsuit against public participation" (SLAPP action) is a lawsuit filed with the intent to silence and intimidate opponents or critics by overwhelming them with the cost of a legal defense until they abandon that opposition or criticism. Rogers, supra at 814 (2). The General Assembly enacted the anti-SLAPP statute "to encourage participation by the citizens of Georgia in matters of public significance through the exercise of their right to petition government for redress of grievances. The statute's stated purpose is to prevent a chilling of that right through the abuse of the judicial process." (Punctuation and footnotes omitted.) Hindu Temple and Comm. Ctr. of the High Desert, Inc. v. Raghunathan, 311 Ga.App. 109, 113 (714 S.E.2d 628) (2011).

          The current version of the anti-SLAPP statute, OCGA § 9-11-11.1, [2] provides, in pertinent part, that

A claim for relief against a person or entity arising from any act of such person or entity which could reasonably be construed as an act in furtherance of the person's or entity's right of petition or free speech under the Constitution of the United States or the Constitution of the State of Georgia in connection with an issue of public interest or concern shall be subject to a motion to strike unless the court determines that the nonmoving party has established that there is a probability that the nonmoving party will prevail on the claim.

OCGA ยง 9-11-11.1 (b) (1). An act in furtherance of a person's right of petition or free speech includes, inter alia, any written or oral statement made before a judicial proceeding; in connection with an issue under consideration by a legislative or judicial body; or in connection with a ...


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