concurring in part and dissenting in part.
I concur in Division 1. Because the majority advances Rogers’s extraordinary and unwarranted success in inverting and distorting this litigation and because the majority’s grave errors have broad implications for the practice of law and contravene public policy declared by the General Assembly in OCGA § 9-11-11.1 (a), the introductory paragraph of the statute prohibiting strategic lawsuits against public participation (SLAPP), I respectfully but emphatically dissent in the remaining divisions.
This is — or ought to be — a straightforward sexual harassment case. It is undisputed that for a number of years, while Brindle was employed as Rogers’s housekeeper, they regularly engaged in sexual activities. She is a single mother with a two-year degree in cosmetology He is a wealthy executive and heir to a fortune. She is some twenty years his junior. Apart from those activities, the parties’ relationship bore the characteristics of an employment relationship rather than a romantic one. When she became badly injured, he fired her. He later rehired her, and the sexual activities eventually resumed. He says those activities were consensual. She says they were a condition of employment.
Brindle’s counsel sent a demand letter to Rogers. Rogers proposed pre-suit mediation, and Brindle agreed. But it appears that Rogers sought mediation only to elicit a settlement demand for use in his preemptive lawsuit — which he filed during the mediation.
The central premise of his lawsuit is the untenable proposition that the demand letter constitutes extortion. We have squarely rejected such claims.
Under Georgia law, threats to take legal action provide no basis for duress and are not actionable in tort. Fields v. *850Thompson, 164 Ga. App. 331 (297 SE2d 100) [(1982)]. This court has concluded that an act must be wrongful to constitute duress and it is not duress to threaten to do what one has a legal right to do. The threat to bring a civil proceeding against the person is not duress in a legal sense. Cannon v. Kitchens, 240 Ga. 239 (240 SE2d 78) [(1977)]; Stroup v. Robbie Jon Dev. Corp., 159 Ga. App. 652 (284 SE2d 667) [(1981)]. Thus we must conclude that the “threats” associated with institution of a civil suit cannot and do not constitute duress and are not actionable in tort.
Mobley v. Coast House, Ltd., 182 Ga. App. 305, 307 (355 SE2d 686) (1987). See also Brown v. State, 322 Ga. App. 446, 454-455 (3) (745 SE2d 699) (2013); DeLong v. State, 310 Ga. App. 518, 523-524 (3) (714 SE2d 98) (2011); Markowitz v. Wieland, 243 Ga. App. 151, 155 (2) (c) (532 SE2d 705) (2000); Rolleston v. Huie, 198 Ga. App. 49, 50-51 (2) (400 SE2d 349) (1990).
We were right to reject them. Pre-suit settlements are an invaluable part of our civil justice system. Demand letters are indispensable to pre-suit negotiations. It is entirely proper for a demand letter to emphasize the collateral benefits of pre-suit settlement. Confidentiality is obviously one of those benefits. It is equally obvious that confidentiality is particularly salient to a prominent defendant whose conduct, even construed in his favor, would earn opprobrium. It is possible, of course, for a pre-suit demand letter to contain threats that do constitute extortion. For example a demand letter might explicitly threaten actions — apart from vigorous prosecution of the case — designed to effect such consequences. But there are no such threats in the demand letter before us, and such threats should not be lightly inferred. Drawing a prospective defendant’s attention to the possible consequences of being involved in litigation is not such a threat. By holding that the author of a demand letter can be held liable for extortion on the basis that the letter is too forceful, this court has committed grave error with broad consequences for the practice of law.
Nor should the focus of this case be on the titillating fact that Brindle videotaped a sex act between the parties. She contends that she did so in order to be able to prove in a court of law — or to discourage Rogers from denying — that the activities did occur. There is no evidence that she or her attorneys have used it or attempted to use it for any other purpose. There is no evidence that Brindle or any of her attorneys disseminated it, attempted to disseminate it, or threatened to disseminate it.
*851The majority declares that creating that recording was “tortious and criminal.” In support of that declaration, the majority simply cites OCGA § 16-11-62 (2). The issue is not so simple.
Our Supreme Court has construed that statute, together with OCGA § 16-11-66 (a), to adopt a participant’s exception (sometimes called a one-party consent rule). State v. Birge, 240 Ga. 501 (241 SE2d 213) (1978); Mitchell v. State, 239 Ga. 3, 4-5 (235 SE2d 509) (1977) (plurality). It is true that we held the one-party consent rule inapplicable to a videotape of sexual activities in Gavin v. State, 292 Ga. App. 402 (664 SE2d 797) (2008). But Gavin is a criminal case. OCGA § 16-11-62 (2) does not create a private cause of action. See Gobran Auto Sales v. Bell, 335 Ga. App. 873, 877 (2) (783 SE2d 389) (2016) (finding no private cause of action for violation of penal statute where statute did not expressly provide for such cause of action).
And “Gavin does not hold and cannot be reasonably understood to hold that the participant’s exception set forth in OCGA § 16-11-66 (a) has no application to video recordings that satisfy the criteria of that statutory exception.” State v. Madison, 311 Ga. App. 31, 34 (2) (a) (714 SE2d 714) (2011). Extending Gavin to this case would entail a determination that Rogers had a right to privacy in his sexual activities with Brindle, to which she was subject, that overrides her right to prove her claim that those activities were sexual harassment. See Sims v. State, 297 Ga. 401, 402-403 (2), n. 2 (774 SE2d 620) (2015); Thomas v. State, 263 Ga. 85, 87 (3) (428 SE2d 564) (1993); Greene v. State, 191 Ga. App. 149 (381 SE2d 310) (1989). See also Katz v. United States, 389 U. S. 347, 351 (88 SCt 507, 19 LE2d 576) (1967); United States v. Thompson, 811 F3d 944, 949-950 (7th Cir. 2016).
The videotape may be inadmissible. See Ransom v. Ransom, 253 Ga. 656, 659 (3) (324 SE2d 437) (1985). But that issue is not ripe and may be moot. There has been no undertaking to admit the videotape into evidence. And there may never be, as Rogers has admitted in his deposition testimony that the activities did occur.
So Rogers’s claims are due to be dismissed under the anti-SLAPP statute. Contrary to the majority, the General Assembly has made very clear that that statute extends to the pre-suit activities like those before us. The General Assembly has directed that when the anti-SLAPP statute comes before the courts, it “shall be construed broadly” OCGA § 9-11-11.1 (a). Its protection extends to “any act. . . which could reasonably be construed as an act in furtherance of the person’s or entity’s right of petition [.] ” OCGA § 9-11-11.1 (b) (1). That includes “[a]ny written or oral statement or writing or petition made beforea.. .judicialproceeding^]”OCGA § 9-11-11.1 (c) (1), and“[a]ny other conduct in furtherance of the exercise of the constitutional right of petition[,]” OCGA § 9-11-11.1 (c) (4).
*852Decided March 16, 2017 Polsinelli PC., William B. Hill, Jr., Joseph C. Sharp, Alexander J. Bartko, for Rogers. Cauthorn Nohr & Owen, Thomas E. Cauthorn III, J. Wickliffe Cauthorn, for Dupree et al. Bondurant, Mixson & Elmore, John E. Floyd, Michael B. Terry, Tiana S. Mykkeltvedt, for Cohen et al.The anti-SLAPP statute begins with findings.
The General Assembly of Georgia finds and declares that it is in the public interest to encourage participation by the citizens of Georgia in matters of public significance and public interest through the exercise of their constitutional rights of petition and freedom of speech. The General Assembly of Georgia further finds and declares that the valid exercise of the constitutional rights of petition and freedom of speech should not be chilled through abuse of the judicial process. . . .
OCGA§ 9-11-11.1 (a).
In other words, the anti-SLAPP Act was implemented to prevent wealthy and powerful persons and institutions from using the threat of crushing litigation to shut down efforts to hold them accountable. In this case, one of Rogers’s lawyers, arguing that attorney Hylton Dupree should be sanctioned even though he entered his appearance for Brindle after the videotape had been created and the demand letter had been sent, let the cat out of the bag. Dupree, he argued, should have “shut this down.”
Brin die’s case should not be shut down. Perhaps a jury would be persuaded that any woman — single mother or not, limited other prospects or not — who was not a willing participant would have quit Rogers or at least not gone back to work for him. That is not for us to decide. Brindle should have her day in court. What ought to be shut down is the effort to deprive her of it.
By taking the opposite course, the majority gravely errs. The majority devalues what the General Assembly has declared to be a matter of “public interest,” OCGA § 9-11-11.1 (a), in other words a matter of concern, gravity, and importance to the public.