*This article was previously published by Law360.

As nearly every company’s products and services can be critiqued on several online platforms, courts must balance a speaker’s First Amendment right to express opinions anonymously online against a business’s right protect itself from defamatory speech. On one hand, anonymous online speech is typically thought to be protected by the First Amendment, and websites posting anonymous reviews often fiercely defend their reviewers’ anonymity and their speech as non-actionable opinion. Early this year, Congress even passed the Consumer Review Fairness Act, which stops a company from using a contractual provision or online terms of use to restrict or penalize a person for posting negative reviews. But on the other hand, speech is not immunized and is not an opinion merely because it is posted on an online forum. Instead, defamation law enables companies that suffer damage to their reputation from baseless, anonymous attacks to hold their attackers accountable.

A California appellate court recently issued a ruling that balanced those principles, but ultimately protected a business’s right to fight online anonymous speech that may be defamatory. ZL Technologies, Inc. v. Does, 2017 WL 3048761 (Cal. Ct. App. July 19, 2017). In so doing, the court emphasized that whether anonymous online speech can be subject to a defamation claim depends on the website’s structure and the challenged speech’s language and context. The ruling also reiterated that before a plaintiff can require a website to disclose the identity of its commenters, it must first make a prima facie showing of an actionable legal claim.

The Importance of the Anonymous Online Speech’s Context, Language, and Structure

In ZL Technologies, people who claimed to be current and former employees of ZL Technologies posted anonymous reviews criticizing its work environment, management, and compensation on Glassdoor, a website for job seekers. In response, ZL sued the anonymous posters, alleging that their critical reviews were libelous. ZL then served a subpoena on Glassdoor that requested records with identifying information about the anonymous posters. Glassdoor objected to the subpoena by arguing that the online reviews were opinions that could not be subject to a legal clam and that identifying the anonymous reviewers would violate free speech rights. The trial court agreed, so it denied ZL’s motion to compel enforcement of the subpoena. That denial left ZL unable to identify and serve the defendants with the complaint, so the court dismissed ZL’s claims.

But the California Court of Appeals reversed the dismissal, holding that some of the challenged statements may be viewed as factual assertions–not opinions–that can support a libel claim. The court first ruled that to determine whether a statement can support a defamation claim, it must determine “whether a reasonable finder of fact could conclude the published statement declares or implies a provably false assertion of fact.” The court then emphasized that the answer to that question depends, in turn, on “the language of the statement and the context in which it is made.” It added that speech is more likely to be considered an opinion if it is hyperbolic, ungrammatical, informal, and general, but more likely to be considered a fact that can be defamatory speech if it is formal, specific, and asserted to be unbiased.

In applying this test, the court emphasized that Glassdoor’s structure and format may lead a reader to conclude that the reviews at issue were a mix of facts and opinions. It found that Glassdoor’s name, its stated purpose and the format for its online reviews led visitors to expect a mix of fact and opinion, not a forum for only angry diatribe and debate to be discounted as mere opinion. The court stressed that, unlike an Internet discussion board that collects reviews in a section suggesting they are “rants and raves,” Glassdoor informed visitors that they could find a job by using its “detailed information.” Likewise, the court found that the challenged reviews could be seen as factual and, therefore, defamatory speech because of their language. Rather than using crude language, immature naming-calling, or one-sided criticisms, the reviews used formal language and relayed information that suggest that they were unbiased and intended to assert facts. As a result, the court concluded that the challenged reviews were not protected opinions and, instead, could be defamatory.

But like other California courts, before requiring Glassdoor to produce records identifying the unnamed reviewers (who also may be current ZL employees who risked their job when harshly criticizing their employer), the court ruled that ZL must make a prima facie showing of the elements for defamation, including a showing that the reviews were false. The court reasoned that this showing will help ensure that ZL has a valid legal claim and is not seeking to embarrass, harass, or silence its anonymous online critics.

The Bottom Line

Speech can be challenged as defamatory even if it is made anonymously on an online forum that collects negative reviews and comments. This decision is a reminder that a website’s structure and context can significantly influence whether a court rules that speech is a protected opinion or is actionable as defamation. As a website’s context (including its name, stated purpose, and formatting) grows more formal and suggests that its comments mix opinions and facts, courts are more likely to conclude that the comments may be defamatory, and to permit businesses to pursue claims to recover for harm to their reputations.