Sixth Appellate Court for Santa Clara County, California (215 Cal. Rptr. 3d 395 (Cal. Ct. App. 2017), 10 March 2017

In a case involving the publication on the Glassdoor website of comments by an anonymous writer about his/her previous place of employment, Machine Zone, the Court considered whether the former employer could force the website to reveal the former employee's name. In this case, the anonymous writer ultimately had his/her identity protected, but the case also stands as a warning that in certain circumstances, a website such as Glassdoor might be ordered to disclose the identity of a user.

An appeals court in California recently considered whether a company that was criticised by an anonymous, former employee on a website may force that website to reveal that former employee's name - and if so, under what circumstances. For champions of individual rights, including particularly an individual's free speech right to remain anonymous, the California state Appellate Court's decision should be heartening. The three judge panel found strong grounds to protect the writer's anonymity and narrowly limited the circumstances under which that person's identify could be forced into the open. The lesson, however, is that risks still do exist for that nameless writer such that he or she may be forced out from the cyber shadows and into the public glare of legal liability. Writer beware!

The facts of the case are simple enough. Glassdoor, Inc. is a website that allows present and former employees of companies to submit comments about an employer in terms of pay, working conditions, personnel, atmosphere, etc. Machine Zone (`MZ') is a developer of computer software game products and it routinely has its employees sign confidentiality nondisclosure agreements to protect the company's confidential information that would be revealed during the course of the employee's work for the company. `John Doe' - the only name by which the person is identified in the decision - is a former MZ employee.

One day, John Doe accessed Glassdoor's website and anonymously submitted comments about MZ - some positive, but some critical. Critical comments noted certain statements made by the CEO concerning the work efforts of the "platform team"; senior management's lack of direction; and the "terrible work-life balance." The next day, MZ notified Glassdoor that some of Doe's comments contained confidential business information; a day later, Glassdoor removed the comments from its website. Within very short order, MZ filed suit against John Doe, and subpoenaed Glassdoor for a copy of the now-removed comments and the identity of John Doe. Glassdoor provided a copy of the posted comments but refused to hand over information identifying Doe, in part on the grounds that disclosure of Doe's identity would violate Doe's right to speak anonymously under the First Amendment of the US Constitution. Further, Glassdoor argued that while MZ may want to characterise certain of Doe's statements as containing "confidential" information, MZ had not made any effort to identify which statements were deserving of such a designation under the confidentiality agreement that Doe had signed. In other words, Glassdoor did not feel that it could act in the face of its subscriber's wish and right to anonymity based solely on MZ's very general characterisation that certain statements in the posting were sensitive and confidential. MZ's response was essentially - "Who are you Glassdoor to raise John Doe's First Amendment rights?" And, thus the legal battle began.

The trial level Court was sympathetic to MZ's point of view and ordered Glassdoor to provide MZ with the identifying information. Rather than comply, Glassdoor petitioned the Appellate Court for review. Almost two years later, in May 2017, the Appellate Court issued its opinion vindicating Glassdoor and thereby prohibiting John Doe from being involuntarily unmasked. Who he/she is remains a court sanctioned mystery. The Appellate Court's analysis first tackles the standing issue of whether Glassdoor had the legal ability to raise John Doe's first amendment rights to speak anonymously. The Court held that Glassdoor could proceed on John Doe's rights. Specifically, the Court pointed out that over the last decade, courts across the United States had determined that a `publisher' could step into the shoes of an anonymous speaker, writer or source and assert that person's free speech rights to be and remain hidden. Moreover, the Court explained that the `publisher' in those circumstances was no true `stranger' to the matter as it had a financial interest in ensuring that its publication was seen as protective and trustworthy to those who used the forum to exercise free speech rights to comment about others. The Court also was persuaded that if only the actual individual were deemed authorised to raise a free speech argument, that person would find him/herself suddenly forced to abandon the very anonymity that he or she originally sought or to incur the expense of having to hire an attorney to protect his or her rights. The Court found it fundamentally unfair to expect an anonymous commentator to be able to finance tens of thousands of dollars or more in legal fees and that such legal expense would essentially bar a typical person from asserting the free speech rights to which he or she is entitled.

However - and there is almost always an `however' - the rights of the individual to speak from behind the protective wall of anonymity are not unlimited. Rather, the Court identified two requirements, which if met, would justify revealing the speaker's identity. First, the complaining plaintiff must make reasonable efforts to ensure that the anonymous speaker is notified that an effort is being made to lift the first amendment privacy shield. In the Glassdoor case that requirement was met as Glassdoor itself reached out to its subscriber who made the comments about MZ. Second, the Court explained that the plaintiff cannot merely make general statements that the person's speech was "unlawful," but must make a prima facie showing that the contested statements are legally actionable. In other words, the plaintiff must identify with sufficient specificity the particular statements that are damaging and show that there is a legal basis to proceed based on those statements. Thus, for example, were the case for defamation, the plaintiff would have to identity the specific statements made and set forth legal arguments supporting a finding of libel or slander. In the Glassdoor case, the question was whether MZ sufficiently identified the particular statements that John Doe made and showed how those statements fell under the umbrella of `confidential information' as that term was defined in the confidentiality agreement that Doe had signed with MZ. Ultimately, the Court determined that MZ's averments were too general, too vague and too conclusory to satisfy this legal standard. Indeed, the Court described MZ's lack of specificity, in combination with its efforts to have the entire matter filed under seal (and, therefore, away from public view) as Kafkaesque!

The Court was also persuaded by the fact that many of the challenged statements were either innocuous or could be learned from reading publicly available information that MZ itself had published in recent years. For example, while MZ argued that John Doe's references to the "platform team" revealed that MZ was working on a new "platform," the Court pointed out that the term `platform' in the computer technology industry had many definitions and that it could not be assumed that a reader would understand the word to refer to a particular new, standalone real-time platform technology. In addition, MZ's own CEO had given an interview three months before Doe posted his comments, where he described MZ's new efforts.

Interestingly, the Court also noted that some of Doe's statements actually were not true - whether intentionally or by mistake. This situation raised the question whether an employee's untrue statements about an employer's internal activities can ever violate a nondisclosure agreement between employee and employer. The Court responded "We think the answer is obviously negative" because "confidential information consists of facts that have been communicated with an expectation of nondisclosure" but "[f]alse statements do not convey `facts' or `knowledge' but the opposite." Thus, as the Court pointed out, an employee making false statements about an employer might be subject to a tort claim for defamation, libel or slander assuming that the employer brought such a claim - but where an employer brought the claim under contract law for violation of a nondisclosure or confidentiality agreement, the falsity of the employee's statements defeats the employer's case.

In sum, based on the particular facts of the case, thanks to Glassdoor's efforts, John Doe remains a protected individual with his/her secret identity intact. However, had his/her statements been true, and had MZ identified those true statements carefully and specifically, and had MZ made a sufficient initial showing that the challenged statements did fall within the ambit of the nondisclosure agreement's definition of `confidential information,' Glassdoor very well could have found itself forced to unveil John Doe's identity. Therefore, no John Doe should ever expect complete protection from possible legal action when making anonymous posts about anyone.