Anonymity is as fragile as a glass door

2017 IN REVIEW

Many of us will not apply for a job or dine at a new restaurant without first reading the reviews on Glassdoor.com or Yelp.com. Glassdoor claims to have accumulated 41 million unique users since its founding; Yelp claims to attract over 142 million visitors per month. Yet both companies are relatively young. If they were people, they'd be highly opinionated middle school children.

New industries often lead to new legal issues, and the anonymous internet review industry represented by Glassdoor and Yelp is no exception. Cases decided last month by the 9th U.S. Circuit Court of Appeals and the California Court of Appeal illustrate the struggles in weighing First Amendment rights to anonymous speech against others' rights to determine who is making that speech.

In United States v. Glassdoor Inc. (In re Grand Jury Subpoena No. 16-03-217), 2017 DJDAR 10632 (Nov. 8, 2017), the 9th Circuit allowed the government to subpoena Glassdoor for identifying information of eight people who had posted anonymous reviews about a company under investigation by a grand jury. The court rejected Glassdoor's claim that its users' First Amendment rights to associational privacy and anonymous speech were violated.

Users of Glassdoor.com post anonymous reviews about their experiences working for various companies. The reviewers must provide Glassdoor with their email addresses, though the addresses do not appear on the site. Reviewers are warned that their information may be disclosed when required through a subpoena or court order.

Several Glassdoor users criticized a government contractor for unethical conduct. The contractor is being investigated by a federal grand jury for wire fraud and misused government funds. Pursuant to that investigation, the government served Glassdoor with a subpoena ordering it to provide the grand jury with information about the 125 people who had posted reviews of the contractor. After Glassdoor protested, the government limited its request to the eight reviewers who had alleged fraud or related misconduct. Glassdoor objected to this request too. After its motion to quash was denied by the district court, Glassdoor brought a recalcitrant witness appeal.

The 9th Circuit acknowledged that the First Amendment provides an implicit right to associate in order to engage in activities protected by the First Amendment. It further recognized the "vital relationship" between freedom to associate and privacy in one's associations, but only in some circumstances. It concluded that forcing organizations to disclose their members' identities may infringe on associational rights.

However, the court rejected Glassdoor's argument that its users were part of an association. The court reasoned that the users' anonymity necessarily made them strangers to each other. Moreover, the users offered varying, individuated viewpoints about a wide range of companies.

The Court of Appeals applied a U.S. Supreme Court case in which witnesses challenged grand jury subpoenas that would have required them to identify individuals who wished to remain anonymous, but who might have had information about criminal activity or organizational membership. In Branzburg v. Hayes, 408 U.S. 665 (1972), the court held that a reporter -- even one who has promised his sources anonymity -- must cooperate with a grand jury investigation unless there is evidence that the investigation is being conducted in bad faith. The 9th Circuit summarized the case as holding that First Amendment-protected activities such as newsgathering, speech or association do not prevent an individual from being required to cooperate with a good faith grand jury investigation. Only witnesses with a legitimate Fifth Amendment claim of self-incrimination may refuse to answer a grand jury's questions or supply relevant information.

The court noted that Glassdoor did not allege the grand jury conducted its investigation in bad faith. The court also found no evidence that the government was on an improper fishing expedition. It stated that Branzburg applies when there is a substantial connection between the information the government seeks and the criminal conduct it is investigating. In the case at hand, the court found such a connection. The grand jury was investigating the government contractor for fraud, waste, and abuse of federal funds. Each of the employees whose contact information the government sought had posted a review of the government contractor that referenced potentially fraudulent conduct. Some postings were very specific as to the nature of the misconduct.

The court also noted that the Glassdoor reviewers did not have a reasonable expectation of privacy because Glassdoor's Privacy Policy notified its users that their identities could be revealed in response to a government subpoena or court order. This fact undermined Glassdoor's contention that enforcing the subpoena would violate its users' rights to anonymous speech or association.

Five days after the 9th Circuit decided the Glassdoor case, the California Court of Appeal issued its opinion in Yelp, Inc. v. Superior Court, 2017 DJDAR 10724 (Nov. 13, 2017). In Yelp, the court resolved a conflict between a plaintiff's right to discover the identity of an allegedly libelous speaker and the speaker's First Amendment right to remain anonymous. The superior court had ordered Yelp to produce documents to reveal the identity of the anonymous Yelp reviewer who allegedly had defamed an accountant. Yelp filed a writ of mandate, arguing the subpoena violated the free speech rights of its anonymous user.

The appellate court first determined that Yelp had standing, as "it has a substantial interest in protecting the right of its users to maintain their anonymity when posting reviews." It then held that the reviewer had made clear, provable statements of fact which, if false, could support a claim of defamation. The court concluded that the plaintiff accountant had made a prima facie showing the challenged review was defamatory. The court acknowledged that pure expressions of opinion are not actionable, but stated that where an expression of opinion implies a false assertion of fact, the opinion can constitute actionable defamation. The court stated that "when vigorous criticism descends into defamation, constitutional protection is no longer available."

The court held that a plaintiff seeking discovery of an anonymous person's identity must first make a prima facie showing the comment at issue is defamatory. Further, before the trial court orders the production of information identifying the anonymous commenter, it must ensure reasonable efforts are made to notify the commenter and permit him or her an opportunity to respond.

These recent cases illustrate the adage that privacy on the internet is an oxymoron. The First Amendment does not protect the anonymity of reviewers who post information that may be needed by a grand jury or who post arguably defamatory reviews