NEWS

By Joseph Wright

April 4 — A social media business review site need not reveal the author of anonymous posts based on speculation they were written by the plaintiff in a defamation suit, the U.S. District Court for the Northern District of California held April 1.

The subject of the posts didn't present a “real evidentiary basis” that the information would be material to defending the claims against him, Magistrate Judge Joseph C. Spero said.

The decision created a new hybrid test for revealing the identity of someone who may or may not be a party to litigation, depending on the outcome of the revelation.

Reviews Proof of ‘Liar' Statement?

Plaintiff Mason Awtry is the defendant in Illinois litigation brought by his former girlfriend Emily Mackie, both of whom are interior designers. Mackie's suit claimed that after their relationship soured, Awtry bought a domain name almost identical to her company's site and used it to divert traffic away from her and to defame her by calling her a liar. She also claimed he hacked into her Apple Inc. iCloud account and downloaded information from her iPad without permission.

In response, Awtry issued a subpoena to anonymous business review website Glassdoor, seeking to unmask the author of four reviews of his company. The four negative reviews were all posted on days that corresponded with custody hearings involving Awtry and Mackie, he claimed, and their authors all said they were interior designers.

Awtry argued that if Mackie was the author of the posts, that would prove Mackie was actually a liar and would provide a defense to the defamation claim.

Glassdoor refused to respond to the subpoena without a court order, pursuant to its privacy policy. Awtry moved to compel compliance.

Fashioning Appropriate Test

Awtry argued the court should apply the Highfields Capital Mgmt. LP v. Doe, 385 F. Supp. 2d 969, N.D. Cal., 2005 test for disclosing the identity an anonymous speaker allegedly engaged in wrongful conduct. That two-part test requires a real evidentiary basis for believing the conduct was wrongful and a balancing of harms between allowing or refusing the disclosure.

Glassdoor argued that the court instead should apply the Doe v. 2TheMart.com Inc., 140 F. Supp. 2d 1088 (W.D. Wash. 2001) test for revealing the identity of an anonymous third party to help support a claim. Under that test, there must be “exceptional circumstances” and a “compelling need” to disclose the speaker's identity when weighed against their First Amendment rights.

The court instead fashioned a hybrid test, asking whether Awtry had a real evidentiary basis for believing the posts were wrongful conduct and that they were material to a full defense of the defamation suit.

Theory ‘Entirely Speculative.'

Using its hybrid test, the court found Awtry's evidentiary basis lacking. Tying together the custody hearing dates and negative post dates was “entirely speculative,” the court said, and didn't account for other similar negative reviews Awtry didn't attribute to Mackie. Further, the poster self-identifying as an interior designer didn't point to Mackie in any meaningful way because Awtry's firm is an interior design firm.

Even if Mackie had a real basis, the court found his need for the information didn't outweigh First Amendment considerations. Because the posters claimed to be former or current employees, revealing their identities could have a chilling effect on posting reviews to the site.

The court also said that proving Mackie was a liar wouldn't provide a complete defense to the Illinois claims because most of the claims weren't based on defamation, and because four misleading Internet posts a year after Awtry called Mackie a liar wouldn't decisively prove that it was true.

The court also agreed with Glassdoor that Awtry hadn't adequately sought the information in discovery, for instance by deposing Mackie.

Morrison & Foerster LLP represented Awtry. Seubert French Frimel & Warner LLP represented Glassdoor.

To contact the reporter on this story: Joseph Wright in Washington at jwright@bna.com

To contact the editor responsible for this story: Donald G. Aplin at daplin@bna.com