An employer who unfairly and inaccurately is slammed by a former employee (or maybe even a current employee!) on a job-posting or employer-rating website will often look to its lawyer for help. Surely the law protects against outrageous false statements that harm the employer’s ability to recruit new talent? Maybe not—and if there is, it isn’t easy. The websites that provide the platform for these posts are immune from liability under the federal Communications Decency Act, and most courts have put up substantial roadblocks to enforcement of a subpoena targeted at getting the names of the anonymous posters. But California now may be leading the way in bringing some sanity to this murky area of the law.
In ZL Technologies, Inc. v. Does 1-7, No. A143680, 2017 WL 3048761 (Cal. Ct. App. July 19, 2017), the employer was subjected to false anonymous posts about its company on the popular website, Glassdoor, Inc. The employer sued the anonymous posters (as John Does) for libel and for violating California law regarding online impersonation. It asked the courts for help in requiring Glassdoor to fork over the identity of the posters. The trial court turned the employer down. But the California Court of Appeal reversed and remanded the case back to the superior court, with the implication that Glassdoor had to provide the information.
The Court’s lengthy opinion (available here) included a thorough discussion of the tension between a plaintiff’s right to the identity of an allegedly libelous speaker and the speaker’s First Amendment right to remain anonymous. It ultimately concluded that to force disclosure of the names of anonymous posters, a plaintiff must state a legally sufficient cause of action against the unknown defendant and make a prima facie showing of the elements of that cause of action. The Court also concluded that (1) the courts determining these issues must ensure that reasonable efforts are made to notify the unknown defendants so they can respond and (2) the plaintiff’s pleading must specifically note the exact statements alleged to constitute defamation.
Applying this standard, the Court reversed the trial court’s denial of plaintiff’s motion to compel. It concluded that plaintiff had alleged a legally valid cause of action, rejecting Glassdoor’s contention that the postings at issue were exclusively nonactionable statements of opinion rather than fact. The Court based this conclusion on both the relatively formal and clear language of the reviews and a description of Glassdoor’s website itself, which communicated that it contained information, i.e., facts, rather than opinions.
As for the requirement of a prima facie showing, the Court sent that issue back to the trial court to resolve. It instructed the trial court that, while proof of falsity may or may not be a required element of plaintiff’s claim, such proof was necessary in this case given the importance of protecting the First Amendment implications. On the other hand, while the plaintiff must make an evidentiary showing establishing a prima facie case, the burden is not high. All the plaintiff need identify is sufficient evidence to prevail, if its evidence was believed.
ZL Technologies clarifies the availability of one tool (albeit an expensive one) when employers are faced with anonymous, false posts. If the statements made are defamatory (and the employer can show that they are false) and if the employer wants to invest the resources necessary to compel the disclosure of the anonymous posters, this case provides good support for those efforts.