by Paul Alan Levy
This past spring, Twitter garnered significant attention, and widespread praise, for a lawsuit it brought against the Trump Administration this past spring to block enforcement of an administrative summons seeking to identify the owners of a Twitter account purporting to reflect criticisms by current employees in Customs and Border Control. The defendants quickly did the right thing by dropping the summons rather than defending their misconduct. There was broad coverage of that litigation, but little attention was paid to a decision of the California Court of Appeal for the Sixth District issued at the same time, which will provide significant underpinning for future such efforts by other ISP’s to protect their users’ interests in remaining anonymous.
Glassdoor, like Twitter, has been unusually proactive over the past few years in opposing the use of government process to identify its users, recognizing the especial sensitivity of current and former employees who express views about he employers that the employers may, in many cases, want to suppress. In the Machine Zone case, an employee had posted review of that company that began with some flattering statements but concluded with a number of serious criticisms. The company sued the employee as a Doe defendant, claiming not that the criticisms were false and defamatory but rather that they revealed confidential information in violation of the non-disclosure provisions that the company includes in its standard employment contract; thus, suit was only for breach of the employment contract. It then issued a subpoena to identify the reviewer; Glassdoor notified its user of the subpoena but also, invoking its user’s First Amendment right to speak anonymously, filed its own motion to quash, arguing that the plaintiff had not made a sufficient legal and evidentiary showing to overcome right to anonymity as required by the leading California case on this issue, Krinsky v. Doe No. 6.
Confining a Negative Standing Decision Close to Its Facts
Machine Zone opposed the motion to quash, not only on the merits but also on standing grounds: it contended that the trial court should refuse to consider the motion on the merits, contending that Glassdoor lacked standing to protect its users’ First Amendment anonymity rights. On this theory, only the user him or herself could make such arguments; Machine Zone relied an earlier decision by the California Court of Appeal called Matrixx Initiatives v. Doe which refused, on a very unusual set of facts, to allow the recipient of a subpoena to refuse to disclose information about the identity of Doe defendants by asserting the Does’ First Amendment right to speak anonymously. In Matrixx Initiatives, the plaintiff had sued two Doe defendants who criticized it on the Yahoo! financial message boards; using subpoenas plaintiff was able to trace at least one of the allegedly defamatory messages to a hedge fund office. Plaintiff then took the deposition of Worthington, the man who ran the office, but he refused to answer questions about the identity of the persons who had used the pseudonyms under which the defamatory material had been posted; he refused as well to say whether he himself had posted under those pseudonyms. (Indeed, some of the evidence in the record gave some reason to believe that Worthington might be one of the Does, in that some of the messages had referred to the contents of a highly specialized financial newsletter, and the record revealed that Worthington was a subscriber to that newsletter. My close familiarity with the record stems from the fact that some of my Public Citizen colleagues filed a pair of amicus briefs in opposition to Maryland state court subpoenas seeking to compel the financial newsletter to identify its subscribers, relying on the First Amendment right to read anonymously). The Court of Appeals ruled that, considering that the relationship between the Doe defendants was unclear, there was no basis for concluding that Worthington had “a sufficiently close relationship to the anonymous user that judicial consideration [of his First Amendment arguments on behalf of that user] was warranted.”
At the appellate level, however, the Court of Appeal in Machine Zone found Matrixx Initiatives inapplicable to the case before it. It concluded that Glassdoor had a close and understandable relationship with the subscribers whose rights it was asserting; moreover, preserving the anonymity of its users is fundamentally important to its business if users concluded that their anonymity could too easily be taken away. In Matrixx Initiatives, on the other hand, “The person attempting to assert the rights of the anonymous online speaker there was a deponent who denied any connection to the offending posts, even though one of them had been traced to a hedge fund he managed.”
This is a major ruling – we have often seen Matrixx Initiatives cited in opposing motions by online platforms defending the anonymity rights of their users. We have consistently argued against the citations, pointing to the unusual set of facts that gave rise to the ruling – not just the fact that the deponent failed to explain his connection with the anonymous users, but equally important the implication from the papers that the deponent might well be the Doe defendants himself. The ruling by the court that decided Matrixx Initiatives, largely confining it to its facts, can make it easier for online platforms that choose to spend their own funds to defend the free speech of their users to step forward and do so.
The Court of Appeal itself explained why it is so important to enable online providers to defend their users' rights:
"We would go further and suggest that some attacks on anonymity may be mounted for their in terrorem effect on potential critics. Here, for instance, such a suit might be intended to deter other past or present employees from criticizing MZ—an effect that would violate the public policy manifested in California statutory law, which prohibits employer restrictions on, or punishment for, speech regarding conditions of employment. Lab. Code, § 232.5 (Lab. Code, § 232.5.) The message conveyed to such would-be speakers by the rule MZ advocates is the one articulated by Justice McAdams: that they may be entitled to engage in anonymous criticism, but only if they are prepared to pay a significant sum—or, as he says, “tens of thousands of dollars”—to prevent disclosure of their identities. (Tendler [v. jewishsurvivors.blogspot.com. 164 Cal. App.4th 802,] 810, 79 Cal.Rptr.3d 407 (conc. Opn. of McAdams, J.).) We do not believe such a regime strikes the right balance between the interests of the anonymous speaker and those of the allegedly aggrieved subject of the speech."
Notable Aspects of the Merits Ruling
After resolving the standing issue in favor of Glassdoor, the appellate panel proceeded to consider the merits of the motion to quash in light of its earlier decision in Krinsky It first faulted the Machine Zone for failing to specify in its court filings the specific statements claimed to have given rise to its claims of liability, and for failing to provide specific factual averments establishing a prima facie basis for finding statements actionable – additional parts of the standard Dendrite and Cahill test for judging subpoenas that the Sixth District panel had glossed over in Krinsky. And although the company made more specific claims at the appellate level, the importance of the requirement of specificity was shown by the court’s reaction to that showing: some of the specific statements claimed to have been in violation of the NDA were shown to not to have been confidential, while other statements were shown by the record to have been inaccurate. And, as the court of appeal said, generally speaking it cannot violate a duty bot to disclose confidential information if the information disclosed is incorrect: “ An employer cannot establish a claim for breach of a nondisclosure agreement unless it is prepared to prove, and does prove, that the defendant disclosed actual confidential information, i.e., that his or her statements were, in some relevant degree, true. Nothing in this record would sustain a finding that the CEO's statements—reported by Doe inaccurately, according to MZ—had this effect.”