Until recently, no California court had squarely addressed the issue of whether a consumer review website has to standing to assert the First Amendment rights of its users to remain anonymous. As the Sixth District Court of Appeal observed: “A decade ago, [this was] a relatively novel question. Now, however, a substantial preponderance of national authority favors the rule that publishers, including Web site operators . . . are entitled to assert the First Amendment interests of their anonymous contributors in maintaining anonymity.” Glassdoor, Inc. v. Superior Court (6th Dist. 2017) 9 Cal.App.5th 623, 629; Yelp Inc. v. Superior Court (4th Dist. 2017) 17 Cal.App.5th 1 (holding that Yelp had standing to assert the rights of its user to remain anonymous).
In Glassdoor, the case involved a website which provided a forum for current and former employees of companies to voice opinions regarding those companies. After a former employee of a software company (“MZ”) posted an anonymous and critical review of MZ on Glassdoor’s website, MZ filed a lawsuit against the John Doe reviewer claiming violation of a nondisclosure agreement that MZ enters with each of its employees. MZ then issued a subpoena to Glassdoor seeking information to identify the reviewer. Glassdoor objected to the subpoena on various grounds, including that disclosure of the information would violate the reviewer’s “right to speak anonymously under the First Amendment,” and that MZ had “failed to make a prima facie showing that any statement in the review . . . is actionable.” Glassdoor, 9 Cal.App.5th at 627-28. MZ moved to compel the production of this information, claiming, among other things, that Glassdoor lacked to standing to assert the reviewer’s First Amendment rights pursuant to Matrixx Initiatives, Inc. v. Doe (2006) 138 Cal.App.4th 872, 881. The trial court granted MZ’s motion. Glassdoor then petitioned the Court of Appeal for an extraordinary writ. The Sixth District granted the writ, and in its decision reversing the trial court’s order distinguished Matrixx as inapplicable, held that Glassdoor had standing to assert the reviewer’s right to anonymity, and held that MZ failed to make the required prima facie showing of its claim. Glassdoor, 9 Cal.App.5th at 634.
Significantly, the Sixth District distinguished its prior decision in Matrixx, a case that could have been used by plaintiffs to argue that a website operator does not have standing. Specifically the Court of Appeal stated that ‘“[t]he person attempting to assert the rights of the anonymous online speaker was a deponent who denied any connection to the offending posts,” making “him a ‘third part[y] in a lawsuit that may have nothing to do with [him].”’ Glassdoor, 9 Cal.App.5th at 629-30 (italics in original). Accordingly, ‘“he had no right to assert the interests of ‘presumably unrelated third parties.”’ Id. at 630. Additionally, Matrixx “did not involve the standing of a publisher or service provider.” Id. at 629 (“Glassdoor is not an avowed stranger to the speaker, as was the objector in Matrixx. It is the acknowledged publisher of the speech at issue. Such a publisher has a strong interest in protecting the right of its users to speak anonymously.”).
Additionally, in its analysis, the Glassdoor decision examined the United States Supreme Court’s Powers test—upon which Matrixx was based— and determined that it “should not be applied where its underlying justifications are absent.” Id. at 631, citing Singleton v. Wulff (1976) 428 U.S. 106, 114. The United States Supreme Court “has identified two such justifications: the undesirability of triggering an unnecessary adjudication where the holder of the rights at issue ‘do[es] not wish to assert them, or will be able to enjoy them regardless of whether the in-court litigant is successful or not,’ and the desirability of ensuring that the third party’s interests are not represented by an inadequate advocate.” Glassdoor, 9 Cal.App.5th at 631. In Glassdoor, the court found that the first limitation was not present since the reviewer had already asserted their right to speak pseudonymously and Glassdoor’s “disclosure of [its] identity would effectively destroy that right.” Id. at 631-32. Nor was there is any indication that the user would be better advocate than Glassdoor. Indeed, the court found that the cost of defending the right to anonymity could “potentially prohibitive” to the user. Glassdoor, 9 Cal.App.5th at 632. As the Court observed, under such a regime, the message to reviewers would be:
The good news . . . [is that] your message will be protected by the First Amendment and your identity will be protected by the court quashing a third party subpoena . . . The bad news: it may cost you tens of thousands of dollars to preserve your anonymity.” (Tendler v. www.jewishsurvivors.blogspot.com (2008) 164 Cal.App.4th 802, 810, 79 Cal.Rptr.3d 407 (Tendler) (conc. opn. of McAdams, J.).) There is no basis to assume that the typical online commenter has access to that kind of money. If not, and unless they can interest some charitable third party in financing a defense, the denial of standing to their publishers may inflict not a mere hindrance, but a practical bar to defending their own interests. Even where the anonymous speaker can afford to pay for a defense, the prospect of doing so can only inhibit the speech at issue. Most content providers . . . are unlikely to receive, and do not expect to receive, any economic reward for the content they provide. [Plaintiff’s proposed] rule would require them to decide whether to engage in an activity creating a significant risk of substantial pecuniary harm while offering no prospect of material reward. The prudent decision is to refrain from posting. From this perspective the publisher may have a greater interest in the right of anonymity than its contributors do, for they have the option of simply declining to speak—a decision that directly injures the publisher’s business. If the publisher is prepared to ameliorate this inhibiting effect by stepping into its contributors’ shoes when their anonymity is threatened, we see no sound reason to forbid it. Denial of that right would serve neither the purposes of prudential standing requirements nor the broader interests of a society devoted to the free flow of ideas and information.
Id. at 632-33.
The Glassdoor decision articulates the national consensus that review websites like Glassdoor, Yelp, and others have standing to assert the rights of their users to remain anonymous. It is an extremely important decision because it allows websites that rely on user generated content to defend their users, some of whom may not be able to defend themselves for various reasons.
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