Thursday, July 20, 2017
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Court of Appeal Declares:
Plaintiff Might Be Able to Unmask Anonymous Critics
Holds That Where Defamatory Factual Allegations Have Been Made, Plaintiff Must Show Falsity to Gain Disclosure of Identities of Posters Using Pseudonyms
By a MetNews Staff Writer
A company that drew negative reviews posted on a website by anonymous critics who claimed to be former employees is entitled to disclosure of the actual identities of six of the posters if it can make a showing their factual allegations are false, the First District Court of Appeal declared yesterday.
Div. Four, in an opinion by Acting Justice Maria Rivera, reversed the decision of Marin Superior Court Judge Mark Talamantes who dismissed the complaint of ZL Technologies, Inc. for failure to serve the defendants—whom the plaintiff couldn’t serve because the judge denied its motion to compel proprietors of the website, Glassdoor, to name them.
“Looking at the totality of the circumstances in this case,” Rivera wrote, with respect to six of the seven posters, “a reasonable fact finder could conclude all of defendants’ Glassdoor reviews contained statements that declared or implied provably false assertions of fact, providing a legally sufficient basis for a defamation cause of action.”
One poster, she said—a current employee who complained that “”management lacks the experience [or] focus to drive growth” and that there is “[n]o transparency or accountability for their decisions”—merely expressed “nonactionable opinion.”
The other six posters made such allegations as:
“Are you willing to put up with public disparagement and humiliation?...To work at ZL, you must be willing to endure personal attacks…by the CEO in front of your colleagues.”
Another review said:
“In its entire history, never managed to keep any non-founding member of the executive team for more than 18 months, not a VP Marketing, not a VP Sales, not a General Counsel.”
Weighing Process
Rivera said a “weighing process is usually invoked when a party is seeking the identity of third parties,” though, she noted, “we have not found any case in which this analysis was conducted when seeking the identity of a defendant.”
The justice observed that there is “an increasing number of cases involving this new species of ‘Cybersmear’ or ‘CyberSLAPP’ (depending on whether one is a plaintiff or defendant),” and it is necessary to craft a means, consistent with due process, of filtering out those cases that are being filed primarily—or solely—as an instrumentality for identifying an anonymous speaker.” She continued:
“Some minimal precautions should be undertaken to protect the right of a speaker to put ideas into the public marketplace without fear of harassment or retaliation.
“We therefore conclude that…the constitutional protections weigh in favor of requiring the plaintiff to make a prima facie evidentiary showing of the elements of defamation, including falsity, before disclosure of a defendant’s identity can be compelled….
“The burden placed upon a plaintiff in these circumstances is neither heavy nor unfamiliar. The anti-SLAPP statute provides similar protections in lawsuits arising out of a defendant’s exercise of the right to speak or petition.”
Burden on Plaintiff
Rivera acknowledged in a defamation case in which the plaintiff is not a public figure and no issue of public interest is involved, the burden is not on the plaintiff to show falsity. She explained:
“[T]he procedural posture of this case requires a different analysis, regardless of whether a matter of public concern is involved. The issue before us is not who has the burden of proof for purposes of liability, but whether there is reason to believe the lawsuit has sufficient merit to require the unmasking of the Doe defendants in the face of First Amendment and privacy rights.”
The case is ZL Technologies, Inc. v. Does 1-7, A143680.
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