While I sometimes think that the California courts can get things wrong, e.g. Hassell v. Bird (2016) 247 Cal.App.4th 1336, rev. granted, (thank goodness) they also, in my opinion, can get things right. On March 10, 2017, the Sixth Appellate Court for Santa Clara County, California in the matter of Glassdoor, Inc. v. Superior Court of Santa Clara County (Machine Zone, Inc.), under Case No H042824, concluded that Glassdoor (a website in which workers can post their own reviews about past or current employers) has standing, i.e, the authority, to assert an anonymous user’s interest in maintaining his anonymity against Machine Zone’s efforts to compel Glassdoor to identify him/her. Can I get a fricken hallelujah!
Clearly I am elated by this ruling. This is not only good for people who write honest reviews but also for websites that allow third parties to post content on their websites. In my line of work I have seen parties file claims against anonymous authors sometimes alleging causes of action that wouldn’t even stand up to basic case analysis of the statute of limitations let alone anything more complicated like ensuring they have met the requirements that are necessary under state law in order for a website to release and anonymous author’s identifying information. These parties will then submit their subpoena or some form of discovery order to a third-party website like Glassdoor and demand production of the identifying author information. If the website’s subpoena compliance department is lead by anyone like me, chances are they have an entire checklist of criteria for their respective state that must be met prior to production. Here in Arizona the controlling law is Mobilisa v. Doe (App. 2007) 217 Ariz. 103, 114-15, 170 P.3d 712, 723-24. Mobilisa requires that a requesting party show: 1) that the anonymous author has been given adequate notice and a reasonable opportunity to respond to the discovery request (which itself has specific requirements that have to be adhered to); 2) that the requesting party’s cause of action could survive a motion for summary judgment on the elements of the claim not dependent on the identify of the anonymous author (and that requires more than laying out a mere prima facie case); and 3) a balance of the parties’ competing interests needs to favor disclosure. Indeed, Mobilisa sets out some hoops that requesting parties have to jump through in order to try and protect the rights of an anonymous author and if requesting parties don’t conform, chances are that subpoena is going to be met with objection.
While I haven’t seen it all that often, I can think of a few instances where counsel was met with my objections and they tried to argue that the website lacked standing to raise such objections. Typically I find this to be the biggest cop out – nothing more than an effort to circumvent the rules – especially when they are met with legitimate objections like statute of limitations or failure to meet other requirements. Many websites, like Glassdoor, will fight this if challenged and I’m pleased to see this outcome.
Absolutely the anonymous author has their rights and can assert them on their own behalf but there are many reasons why an author may not stand up and defend. What if the author doesn’t get notice of the matter? I have personally seen some suspicious activities going on in the past and UCLA Law Professor Eugene Volokh and Public Citizen Litigation Group attorney Paul Alan Levy have helped raised awareness about many of the same concerns that I have had. Take for example their Washington Post article which discusses “Dozens of suspicious court cases, with missing defendants, aim at getting web pages taken down or deindexed.” What if the author lacks the knowledge to even understand that they have a defense? The minute that a lawsuit gets filed defendants tend to get scared – especially if they are not in a solid financial position. It’s not uncommon for an author to stand behind their story but fear the litigation and so they bury their head in the sand in hopes that the matter will “go away.” They may not even consider the fact that they have a defense. It’s not as if many people have legal knowledge -even the basics – and legal departments of websites can’t be giving people legal advice. What if the author told the truth and cant afford a defense? Here again I am aware of a situation where a person wrote a review – alleged that the story was truthful, but got sued in another state over the posting and couldn’t afford to appear and defend the situation in the other state. How is that justice? I’m sorry ma’am/sir – your right to free speech is only to the extent your pocket book can pay for a defense?
Now I’m not suggesting that websites take on the litigation defense of all of their users – that would not be economically feasible. Websites usually have no unique knowledge that would put them in a position to argue truth as a defense or anything like that. However, I think websites who want to help protect their anonymous authors should have the ability to stand up to those who may be simply trying to take advantage of an anonymous author’s vulnerabilities through basic objections. If you are making claims that are so far outside the statute of limitations it isn’t even funny, OBJECTION. You’re case couldn’t stand on it’s own anyway. If you aren’t following the correct process under the applicable law to ensure that an author has the appropriate notice and reasonable opportunity to defend, OBJECTION. You can always attempt to cure the deficiencies and try again. If you can’t – well, then you probably don’t have much of a case in the first place. It’s a whole lot easier for a website’s legal department or subpoena compliance department to look at a situation and say “Nope, try again…” or “Nope, not happening…” than it is for a user to try and teach themselves the law or hire expensive counsel (face it – even the cheap attorneys aren’t “cheap”) to teach them the law and make the same objections on their behalf – within a short period of time.
I am so glad that the Glassdoor court recognized some of these issues and considered the potential for chilling effects on free speech. As the Court points out in Glassdoor, “…some attacks on anonymity may be mounted for their in terrorem effect on potential critics.” Glassdoor at p.12. This is a fantastic ruling and you can review the entire 33 page ruling below or by clicking HERE.
Until next time friends…