In this day and age with Yelp and online reviews of businesses, one may wonder to what extent defamation laws are applicable and when would they come into play. A recent case ZL Technologies v. Doe demonstrates how.
ZL provides email archiving, eDiscovery, and compliance support to businesses nationwide. Glassdoor operates a website on which people may anonymously express opinions regarding employers.
Current or former ZL employees posted anonymous reviews on Glassdoor’s website criticizing ZL’s management and work environment. ZL filed a complaint against those individuals, naming them as Doe defendants and alleging libel per se (Civil Code 45) and online impersonation (Penal Code 528.5) to the extent any of them was not a ZL employee. ZL served a subpoena on Glassdoor, requesting identification and contact information for defendants. Glassdoor objected, arguing: violation of the First Amendment and California Constitution privacy rights; the posted statements were “protected opinion, patently hyperbolic, not harmful to reputation,” or uncontested statements of fact; Glassdoor’s reputation would be harmed by disclosure; and, ZL was obligated to make a prima facie showing the statements were libelous before it could compel disclosure. The court denied ZL’s motion to compel. More than a year later, the court dismissed the action because of ZL’s failure to serve the defendants. The court of appeal however reversed. While an author’s decision to remain anonymous is protected by the Constitution, a reasonable fact finder could conclude all of the reviews contained statements that declared or implied provably false assertions of fact, providing a legally sufficient basis for a defamation cause of action.
So if statements are false assertions of fact, such statements provide grounds for defamation. The more a statement implies a definitive act that can be proven to be true or false the more likely it is to be a fact. On the other hand, the more a statement is couched in cautionary language making it clear the speaker is expressing his personal point of view, the more it is likely to be considered an opinion. While opinion is a more protective speech and a defense against defamation, statement of fact is arguably more verifiable and subject to defamation cause of action in the event it is not true.