In an amicus brief filed this afternoon, Public Citizen and Twitter have urged the California Court of Appeal for the First District to join with the Court of Appeal for the Sixth District in ruling that plaintiffs seeking to identify anonymous online critics whose statements they claim are defamatory or otherwise wrongful must produce evidence and not merely allegations in support of their claims.
The case arises from an appeal by ZL Technologies, a company that has sued seven anonymous former employees who posted reviews on web site Glassdoor.com, where employees and former employees review their experiences working for and being interviewed by companies. The reviews about ZL Technologies, like the reviews about most companies (including Public Citizen!) were decidedly mixed; ZL complained only about the negative ones which are claimed in the suit to be either false, or misleading, or at very least disparaging. The trial court denied plaintiff’s motion to quash with a fairly opaque order that said that the company had not shown enough justify overcoming the right to speak anonymously; a year and a half, the court dismissed the complaint when the company had done nothing to cure its inadequate showing in support of compelled disclosure.
Importance of Winning in the New District
The case is important because this case is not inthe Sixth District of the California Court of Appeal (including Silicon Valley where such gigantic hosting platforms for Internet speech as Google and Yahoo are located), which has already addressed (in Krinsky v Doe 6) the well-known Dendrite / Cahill standard for subpoenas to identify anonymous speakers, and has held that evidence and not just allegations must be presented in support of discovery. Instead this case arises in the District just to the north in San Francisco, where not only Glassdoor but also Twitter, Yelp, Automattic and other hosts are to be found. We have urged that court not just to require evidence, as Krinsky did, but to go further and adopt explicit balancing standard employed in Dendrite and a number of other appellate courts around the country.
The New ISP Model, Avidly Defending User Anonymity
The case is also of interest because Glassdoor’s aggressive litigation response to the subpoena represents a growing trend that we have seen among some of the newer ISP’s. When we started litigating these cases fifteen years ago, the best we could hope for was that ISP’s would provide prompt notice to their users and then refuse to comply with the subpoena for a reasonable amount of time; the Cyberslapp Coalition concentrated its efforts on urging ISP’s to adopt model notice procedures and stand firm when plaintiffs tried to demand immediate compliance. These efforts have largely been successful although some hosts have been decidedly hostile to their users anonymity rights and others have had to learn hard lessons from a slapdash response to protecting users. The large ISP’s have, however, tended to stand up for their users right to receive effective notice.
Over the past few years, however, several ISP’s have assumed the mantle originally undertaken by America Online, which actively supported the creation of a standard for protecting the anonymity of its users both by objecting to subpoenas on free speech grounds, as in the Anonymous Publicly Traded Company case, and filing a comprehensive amicus brief supporting the Doe’s position in the very first of these cases to reach a state supreme court, Melvin v. Doe. In a number of recent cases, Twitter gained recognition for going to court to resist subpoenas where the party seeking discovery, sometimes private parties as in and Macao Music Group and Gatesman cases, both of which led to orders denying discovery, as well as in some much tougher cases where it opposed grand jury subpoenas that had evident political motivation (the Malcolm Harris and Wikileaks cases, where the information was eventually compelled).
Up in Seattle, Avvo has been defending the anonymity of one of its reviewers up to the state Court of Appeals, and Yelp has litigated a series of cases to defend its users’ anonymity when businesses sue over allegedly defamatory reviews but are unwilling to provide any evidence in support of their claims of falsity (the Hadeed case in Virginia is the best known,but it also defended against a pair of Texas subpoenas).
Glassdoor, however, has taken this sort of commitment to its users' First Amendment rights to a new level, demanding not only that plaintiffs meet the First Amendment standard but going statement by statement though the subjects of the litigation and explaining why each of them should be protected. I understand that the case in which we have filed as amicus is only one of more than half a dozen subpoenas that Glassdoor has sought to quash in the short period of its existence. Given that Glassdoor is spending its own money on private counsel in these cases, I find its persistence particularly admirable.