Cal Appellate Court Upholds Glassdoor’s Standing to Challenge Subpoena

A California appellate court handed Glassdoor, the website where employees and former employees anonymously review companies and their management, a major victory by upholding its standing to challenge subpoenas for reviews submitted by its users.

Online game developer MZ, initiated a Doe action alleging that reviews posted on Glassdoor violated their company nondisclosure agreement (“NDA”).  It won a motion to compel Glassdoor to reveal the identity of the poster and Glassdoor appealed.

MZ sought to argue that Doe’s  First Amendment rights are personal to him and may not be erected by Glassdoor as a barrier to discovery. The court dismissed argument, explaining

a substantial preponderance of national authority favors the rule that publishers, including Web site operators, are entitled to assert the First Amendment interests of their anonymous contributors in maintaining anonymity.  (citations omitted)  Glassdoor is not an avowed stranger to the speaker, as was the objector in Matrixx. It is the acknowledged publisher of the speech at issue. Such a publisher has a strong interest in protecting the right of its users to speak anonymously.

The court also warned that the view advocated by MZ would have a chilling effect on speech.

MZ’s rule would require them to decide whether to engage in an activity creating a significant risk of substantial pecuniary harm while offering no prospect of material reward. The prudent decision is to refrain from posting. From this perspective the publisher may have a greater interest in the right of anonymity than its contributors do, for they have the option of simply declining to speak—a decision that directly injures the publisher’s business. If the publisher is prepared to ameliorate this inhibiting effect by stepping into its contributors’ shoes when their anonymity is threatened, we see no sound reason to forbid it.

 

 

After finding that Glassdoor had standing, the court found that MZ had not made a prima facie case that the postings violated its NDA.


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