California appellate court clarifies the test to compel disclosure of anonymous online posters



July 25, 2017

Privacy Alert

Author(s): Karl D. Belgum

A California appellate panel issued an opinion on July 21, 2017, clarifying the test to apply when a plaintiff alleging online defamation seeks discovery, from a message board, of the identity of anonymous posters. The case, ZL Technologies v. Does 1-7 (July 21, 2017) 2017 DJ DAR 6999, __ Cal. App. 4th __, was brought by a corporate plaintiff against “doe” defendants who posted comments on Glassdoor, Inc., an online review site. Glassdoor invites employees to rate their employers “1–5” on topics such as “Culture & Values” or “Compensation & Benefits,” and to submit written comments under the heading “Pros and Cons.” The target audience for the site is job seekers.

ZL sought a subpoena requiring Glassdoor to reveal the identity of the seven posters, which Glassdoor opposed. The superior court declined to issue the subpoena, finding that the online comments were “primarily” non-actionable opinion. As a result, the case was dismissed for failure to serve defendants within the required time period. The court of appeal reversed after reviewing the legal standard for issuance of such subpoenas.

The court’s opinion compared California law, as discussed in Krinksy v. Doe 6 (2008) 159 Cal. App. 4th 1154, with the standards that have been adopted in other states, and then modified the California test. Under Krinsky, a party seeking to compel disclosure of the identity of an anonymous online poster must make a prima facie showing establishing a valid defamation claim. That includes a showing of a statement of fact (not opinion) with defamatory content, which is false. Such a showing is deemed adequate to overcome the countervailing First Amendment rights of the poster to remain anonymous.

By contrast, under New Jersey law, two additional hurdles must be overcome. The plaintiff must first give notice to the anonymous poster that the subpoena is being sought, presumably by making a post on the same bulletin board. Then, after plaintiff makes a prima facie showing of a valid claim, the court must engage in a separate “final balancing” of the importance of the defamation claim versus the poster’s constitutional right to remain anonymous. Dendrite Intern. v. Doe No. 3 (2001) 342 N.J. Super. 134, 775 A.2d 756. Public Citizen and Twitter, Inc. filed amicus briefs in ZL urging the court to adopt those additional Dendrite tests. They argued that the final balancing would be an opportunity for a court to consider the fact that commercial speech is entitled to lesser constitutional protection, the extent of a corporate plaintiff’s alleged harm and whether the corporate plaintiff brought some or all of the harm on itself through its own conduct.

The court of appeal in ZL adopted the first Dendrite principle, requiring that some effort be made to give notice to the anonymous poster before issuing a subpoena to disclose his or her identity, although it left the nature of such notice in the discretion of the trial court. But the court declined to adopt an explicit “final balancing test,” holding that libelous speech is not entitled to constitutional protection.

The court also noted that the prima facie showing must include proof of falsity, even though in a defamation case the burden to show truthfulness rests on the defendant, as an affirmative defense. The court compared the showing to that required by a party opposing a SLAPP motion.

The aspect of the opinion that will provide the most guidance to businesses considering whether to pursue litigation against an online poster is the discussion of the factors that may render online comments false statements of fact versus non-actionable opinion. The opinion reflects an ambivalence about Internet postings. On the one hand, the court recognized that the Internet seems to encourage intemperate, hyperbolic speech. However, not all forums are the same in that regard. While some, such as the “Rants and Raves” forum on Craigslist, seem to invite emotional, off-the-cuff opinions, the Glassdoor site held itself out as a resource of useful information on which job seekers could rely. Its guidelines urged posters to be accurate in their factual statements, and asked posters to include both “pros” and “cons” in their comments. In short, the nature and rules of the site itself are factors courts can look at to determine whether comments are actionable. The style and tone of the specific comments also matter. A comment written in an angry tone, full of vituperative and offensive comments, may, ironically, be less actionable than something written in a neutral tone. Grammatical and spelling errors are additional indicia that a comment is not actionable because it would probably not be taken seriously by the “reasonable reader.” In the end, the court of appeal reversed the trial court for having applied the “non-actionable opinion” label too broadly based on the posted comments, which contained numerous assertions deemed factual in nature, such as that ZL paid below market salaries and that, on average, new employees left the company within six months.

The appellate court’s opinion in ZL Technology illustrates the difficult issues that face a business when deciding how to respond to negative online reviews. Disclosure of the identity of anonymous online posters will be highly fact specific, and difficult to predict.

The foregoing has been prepared for the general information of clients and friends of the firm. It is not meant to provide legal advice with respect to any specific matter and should not be acted upon without professional counsel. If you have any questions or require any further information regarding these or other related matters, please contact your regular Nixon Peabody LLP representative. This material may be considered advertising under certain rules of professional conduct.

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