Celebrity litigation rarely changes employment law. Occasionally, however, it shines a spotlight on a statute that has been quietly waiting for the right case. That may be exactly what is happening with California Civil Code section 47.1.
Most of the public attention surrounding the Blake Lively and Justin Baldoni litigation has focused on the allegations themselves and the personalities involved. California lawyers, however, should pay attention to something else. In a recent ruling, a federal judge held that Lively may recover attorneys’ fees and costs under Civil Code section 47.1 for defending against defamation claims arising from her allegations of workplace misconduct. The court declined, at this stage of the litigation, to permit recovery of treble damages or punitive damages through the procedural mechanism before it, concluding those remedies would require a properly pleaded claim.
Whether the ruling ultimately affects the outcome of the case remains to be seen. What is already clear, however, is that it has introduced a relatively overlooked California statute to a much broader audience.
Employment lawyers should take notice.
A Law That Arrived Quietly
Civil Code section 47.1 became effective on January 1, 2024, as part of Assembly Bill 933, one of several California laws enacted in the wake of the #MeToo movement. The Legislature recognized that victims of workplace harassment, discrimination, retaliation, and sexual assault often face a second threat after reporting misconduct: the prospect of being sued for defamation.
The statute was designed to address that concern by protecting certain good-faith communications about workplace misconduct made without malice and based upon a reasonable factual foundation. In doing so, the Legislature sought to reduce the chilling effect that retaliatory litigation can have on employees deciding whether to come forward.
Although section 47.1 has now been on the books for more than two years, it has generated surprisingly little discussion. That may be because relatively few published decisions have interpreted it, leaving many employers and even employment lawyers only vaguely aware of its existence. That period of relative obscurity may be ending.
The Economics of Litigation Have Changed
The significance of section 47.1 lies not only in the privilege it creates but also in the remedies it provides.
A prevailing defendant in a covered defamation action may recover reasonable attorneys’ fees and costs. The statute also authorizes treble damages, punitive damages where otherwise permitted by law, and other appropriate relief in qualifying circumstances. Fee-shifting alone has the potential to alter the economics of litigation.
For many employers, the decision to pursue an aggressive response to workplace allegations traditionally has involved evaluating the likelihood of prevailing on a defamation claim. Section 47.1 requires a broader analysis. Even a lawsuit filed with the intention of protecting the organization’s reputation may carry substantial financial consequences if the claim falls within the statute’s reach.
Rethinking the “Strike Back” Strategy
Over the years, some employers have responded to serious workplace complaints by going on the offensive. Demand letters. Defamation threats. Public statements challenging the complainant’s credibility. In some cases, affirmative litigation.
There certainly are situations in which legal action is appropriate. Section 47.1 does not immunize knowingly false accusations, or eliminate legitimate defamation claims. The statute requires that the challenged communication be made without malice and with a reasonable basis for believing it to be true.
Nevertheless, the law should cause employers and their counsel to pause before responding aggressively to protected workplace complaints.
Too often, litigation strategy becomes intertwined with emotion. A company feels unfairly accused. Leaders want to defend the organization’s reputation. There is a desire to “set the record straight.” These reactions are understandable. They also can increase legal exposure.
Employers remain free to conduct thorough investigations, dispute unsupported allegations, and vigorously defend themselves in litigation. What section 47.1 discourages is using litigation itself as a means of silencing or punishing those who report workplace misconduct in good faith.
Part of a Larger Trend
Viewed in isolation, Civil Code section 47.1 may appear to be a narrow defamation statute. It is not.
It reflects a broader direction in California employment law. Over the past decade, the Legislature steadily has expanded protections not only for employees who prove unlawful conduct, but also for those who report it, oppose it, participate in investigations, or otherwise engage in protected activity. The focus increasingly extends beyond preventing discrimination and harassment themselves to preventing conduct that discourages employees from coming forward in the first place.
Section 47.1 fits squarely within that legislative framework.
The Blake Lively litigation did not create this trend. It simply reminded the legal community that another piece of it has been sitting quietly in the Civil Code.
For California lawyers advising employers, the lesson is straightforward. Before recommending an aggressive response to allegations of workplace misconduct, it is worth remembering that California’s legal landscape has changed. Sometimes the greatest litigation risk is no longer the complaint itself, but the employer’s response to it.