By Jason C. Gavejian, Esq. of Jackson Lewis P.C.
You’ve spent extensive time and effort, not to mention money, establishing your company’s reputation only to have the company defamed or disparaged anonymously online. This is a scenario which many organizations face in today’s virtual marketplace. As a recent decision by the Delaware Superior Court illustrates, dealing with these types of issues is often difficult and complicated, especially from a legal perspective.
Late last year, the Delaware Superior Court denied SunEnergy1’s efforts to identify an anonymous poster who allegedly made defamatory comments about SunEnergy1’s business on the website Glassdoor.com. Specifically, SunEnergy1 and two individuals (Plaintiffs) filed a defamation lawsuit in North Carolina Business Court against a former employee and Chief Financial Officer, Jeffery Brown (Defendant). The suit was filed in February 2014 after statements, allegedly made by Brown, were posted on Glassdoor.com on December 15, 2013. The anonymous posting was titled, “This is a terrible place to work” and made a number of unflattering statements about the work environment at SunEnergy1, including labeling the company’s culture as one of “oppression, untruths, and bullying.”
Glassdoor.com is one of several websites where job-seekers can post resumes and employers can advertise career openings. Glassdoor.com describes itself, and as its name implies, as a “free jobs and career community that offers the world an inside look at jobs and companies.” Glassdoor.com also utilizing a rating system which is based on user input and offers a form where users can post reviews about companies listed.
After filing suit, Plaintiffs served an out-of-state subpoena on Glassdoor in Delaware and ultimately filed a Delaware action to compel Glassdoor to identify the anonymous poster’s Internet Protocol (IP) address. In response, Glassdoor filed a motion to quash, arguing the Plaintiffs’ subpoena was overbroad, unduly burdensome, and infringed upon the anonymous user’s First Amendment right to freedom of speech.
The Delaware Commissioner found that, although the subpoena arose from a North Carolina lawsuit, Delaware’s standard for overcoming online anonymity is the correct source of law because the information was being sought from a Delaware company. The Court stated the right to discover the identity of an anonymous author alleged to have made defamatory statements must be balanced against the author’s First Amendment right to free speech and to remain anonymous. In the precedential case Doe v. Cahill, the Delaware Supreme Court held that “[courts] must adopt a standard that appropriately balances one person’s right to speak anonymously against another person’s right to protect his reputation.” In short, under Delaware law, a party seeking to identify an anonymous speaker must make a showing that a civil wrong has been committed.
Applying Delaware law, the Court stated it needed to decide whether any “reasonable person” could have interpreted the statements in the December 15, 2013 review “as being anything other than an opinion”? In making its determination, the Court looked closely at the nature of Glassdoor.com and found it is a website for employment and company evaluation and not a news website where there is an expectation of objective reporting and journalistic standards. Similarly, the Court stated it is not a website where a person would go to find detailed factual information about a company such as earnings reports and SEC filings. Rather, the Court found it “quite evident” that Glassdoor.com is a website where people go to express their personal opinions having worked for a company—not a website where a reasonable person would go looking for objective facts and information about a company. The Court went on to say that it was “readily apparent that the author of this review is unhappy about his or her time at SunEnergy1 and has the proverbial axe to grind—no reasonable person would think otherwise. The fact that the author is a ‘former employee’ who wished to remain anonymous only cements this conclusion.”
In denying Plaintiffs’ motion to compel identification of the anonymous user, and granting Glassdoor’s motion to quash, the Court found that even when viewed in the light most favorable to Plaintiffs, the content of the review was not defamation and was instead nothing more than a rant by a former employee, citing anecdotal evidence, about why he or she thinks it is a terrible place to work.
Unfortunately for employers, or organizations which are similarly disparaged, the Court did not consider the potential harm anonymous posts like those at issue here could have on the organization’s reputation. In fact, “opinions” or insights from former employees are exactly why many users frequent such sites.
For additional information, please contact Jason at GavejiaJ@jacksonlewis.com or (973) 538-6890