Glassdoor, Inc (Glassdoor) operates a website on which workers can post reviews of their past and current employers. Machine Zone, Inc, (MZ), a company that develops software products, contends that a former employee anonymously posted a review of MZ on Glassdoor’s website that disclosed confidential trade secret information, which violated a nondisclosure agreement required of all MZ employees. When Glassdoor refused to identify the person behind the post, MZ moved for a judicial order compelling Glassdoor to do so. A trial court granted the motion, but the California Court of Appeal, Sixth Appellate Division, recently entered an order reversing the lower court’s ruling. Glassdoor, Inc. v. Superior Court of Santa Clara and Machine Zone, Inc., No. H042824 (March 10, 2017).

The appellate court noted that there is no question that the author of the post, identified in the litigation as John Doe, had a protected First Amendment right to speak anonymously. MZ argued that Doe’s First Amendment rights are personal to him and may not be erected by Glassdoor as a barrier to discovery. The court rejected MZ’s argument, finding that a substantial preponderance of national authority favors the rule that publishers, including website operators, may assert the First Amendment rights of their anonymous contributors. Glassdoor argued that its business model relies upon maintaining its users’ anonymity and that the reliability of information on would likely decrease if users would fear retaliatory litigation based upon their posted information.

The appellate court stated that “the right to speak anonymously is not an unalloyed good.” The court, however, expressed concerns about piercing a speaker’s anonymity without any assessment of the alleged wrongfulness of the speech. Consequently, the court held that MZ should not be allowed to compel the disclosure of the anonymous poster’s identity without first clearly identifying in the judicial record the specific statements that have given rise to liability.

Particularly, the court found that MZ’s generalized assertions of disclosure of proprietary information and alleged violations of a nondisclosure agreement were insufficient to meet its burden. The court compared MZ’s lack of specificity to the trial described in Franz Kafka’s novel The Trial, “where Joseph K. is arrested and told to report to court, neither the date or the charge is made known to him.”

As we have reported, cases nationally are addressing the extent to which anonymity may be preserved on Internet postings and social media sites. The rulings have varied, with courts typically undertaking a fact-specific balancing of the interests at stake, particularly the speaker’s First Amendment rights and the alleged harmfulness of the speech.