By Sara A. Bradley, Attorney
Many people enjoy using the Internet because it affords them some anonymity, and they can get away with saying more in cyberspace than they would in a conversation with someone face-to-face. Don’t like a product? Discuss it online. Annoyed with your neighbor? Post about it on your local Facebook group. Disgruntled with your employer? Rethink that posting.
A recent California court decision provides a framework for employers to use to discover the identity of former and current employees who take to the Internet to anonymously air their grievances. The case explores the conflict between a plaintiff’s right to use the court system to discover the identity of a libelous speaker and the speaker’s First Amendment right to remain anonymous.
ZL Technologies Inc. v. Does 1-7
In ZL Technologies, several current and former employees of ZL Technologies (“ZL”) anonymously posted reviews criticizing their employer online via the website Glassdoor. ZL sued the employees for libel per se, naming them as Doe defendants, and served Glassdoor with a subpoena requesting records to identify and give contact information for them. Glassdoor refused.
ZL filed a motion to force Glassdoor’s compliance with the subpoena, but the trial court denied it. The court concluded the employees’ critical reviews qualified as protected opinion and therefore could not form the basis for a defamation cause of action.  ZL appealed.
The Test for Compulsory Disclosure of an Anonymous Speaker’s Identity
The appellate court laid out a test for learning the identity of an anonymous speaker:
- Plaintiff “must state a legally sufficient cause of action against the defendant, and must make a prima facie showing of the elements of that cause of action.”
- A court must ensure “reasonable efforts are made to notify the defendants” so they may respond before their identities are disclosed.
- Specific Statements. A plaintiff must identify and set forth the exact statements it alleges constitute actionable speech.
- No Balancing. In some jurisdictions before a court forces disclosure of a defendant’s identity, it weighs the defendant’s First Amendment right of anonymous free speech versus the strength of plaintiff’s prima facie case and necessity for the disclosure of the defendant’s identity. A court, however, should not balance where it is clear that discovering the defendant’s identity is necessary to pursue the plaintiff’s claim, and the plaintiff makes a prima facie showing a of a libelous statement.
The court reversed the trial court’s ruling, holding in favor of ZL. The court reasoned ZL had a legally valid cause of action because the employees’ postings on Glassdoor included factual assertions that could form a legally sufficient basis for ZL’s defamation case.
While some statements were opinion (“Don’t Work Here,” “bizarre vacation policy,” “senior leadership is not great”), other statements included factual assertions that could be damaging to a business’s reputation (“employee pay was 30-50% lower than industry standards[,]” “management composed of purely family and school-specific friends,” “no experienced managers to grow the company”).
The court concluded by saying constitutional protections of the defendant’s right to privacy and anonymous speech weighed in favor of requiring the plaintiff to make a prima facie evidentiary showing of the elements of defamation, including falsity, before compelling disclosure of the defendant’s identity. The court left it to the trial court to make this determination and to analyze the case according to the test outlined above.
As a result of this case, employers have some ability to control what is negatively said about them online. While employee opinions are generally protected under the First Amendment, employees must be aware that they cannot use the Internet to say whatever they want about an employer. If you want more information or have questions regarding best employment practices on the Internet, please contact your local employment law attorney.
About the Author
Sara A. Bradley graduated magna cum laude from the University of San Diego School of Law in 2013 and the University of Notre Dame with a Bachelor of Science in Mathematics in 2002. She most recently practiced law at Morrison & Foerster LLP in San Diego, California. She is also a California-credentialed high school mathematics teacher and taught for several years at the Academy of Our Lady of Peace in San Diego. In her spare time, Sara, her husband, and daughter enjoy being outdoors, and hiking and exploring Southern California.
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 ZL Techs., Inc. v. Does 1-7, 13 Cal. App. 5th 603, 610 (2017).
 Id. at 607. Glassdoor operates a website for job seekers where people may anonymously post information and express their opinion regarding current or past employers. Id.
 Id. An additional cause of action included online impersonation in the event any of the Doe defendants were not current or former employees. Id. Libel per se is libel which is defamatory of the plaintiff without the necessity of explanatory matter. Cal. Civ. Code § 45. A Doe defendant is a person that cannot be identified by the plaintiff before he brings suit.
 Id. at 607.
 Id. at 608.
 Id. at 618.
 Id. at 609. Public Citizen and Twitter, Inc. also filed a brief as amici curiae in support of Glassdoor. Id.
 Id. at 612-13.
 Id. at 614-15. The trial court determines which party notifies the anonymous defendants. Id. Here, Glassdoor acknowledged it had e-mail and ISP addresses for the defendants. Id.
 Id. at 616 (quotations omitted).
 Id. at 616-17. See, e.g., Dendrite Internat. v. Doe No. 3, 342 N.J. Super. 134 (App. Div. 2001).
 Id. at 617.
 Id. at 634.
 Id. at 624-25, 630-31. The court used a totality of the circumstances test to arrive at this conclusion.
 Id. at 627-28. The trial court looked at the same statements and concluded they were protected opinion. Id. at 608. Statements are usually opinion, and likely protected, when they use crude language, poor spelling or grammar, contractions, and involve juvenile name-calling. Factual statements are grammatical, succinct, and use language suggesting a professional work environment. Id. at 626-30 (quotations omitted).
 Id. at 633-34 (quotations omitted). Usually the defendant must prove falsity unless the speech involves a matter of public concern. Id. at 631.
 Id. at 634.