A Dallas company says it was defamed by online reviewers and wants them unmasked as a first step toward a potential lawsuit, but Glassdoor argues that its users have a First Amendment right to remain anonymous.
Andra Group, a Dallas clothing retailer, wants to know the identity of two people who anonymously posted scathing condemnations of its business practices on Glassdoor, an online platform that solicits reviews of companies by current and former employees.
Arguing that the Glassdoor-published depictions of illegal activity, harassment and discrimination were untrue and harmful, Andra is seeking the names as a first step toward possible defamation or business disparagement lawsuits against the reviewers.
Thus far, Texas courts have sided with Andra.
Glassdoor, however, has asked the Texas Supreme Court to protect the identity of its posters, arguing that accommodating Andra would violate the First Amendment right of its reviewers to speak anonymously.
Supported by Twitter, Yelp, Reddit and other top online platforms, Glassdoor also argues that forcing it to reveal users’ names would restrict the number and quality of reviews on its website and open reviewers to retaliation by current and future employers.
“The First Amendment protects anonymous speakers. Our founders believed that anonymous speech was an essential tool to provide critical commentary and to foster public debate,” the Electronic Frontier Foundation, a nonprofit civil liberties group, told the Texas court in a legal brief supporting Glassdoor.
But Andra insists that it and other companies must have a way to protect against untrue criticism that can hurt profits, investors and employees.
Glassdoor’s arguments “assume the post writers are altruistic former and current employees. No evidence exists to support that assumption. The commenters could be competitors or one angry untruthful individual posting repeatedly,” Andra’s lawyers told the court in a legal brief.
In addition, Andra said, Glassdoor has a financial stake in allowing users to remain anonymous, but its bottom line “cannot take precedence over harm to another company.”
As the internet reaches ever deeper into daily life, courts are increasingly being called upon to draw the line between a company’s right to protect its reputation and the personal right to speak from the shelter of anonymity — a situation that can foster honesty but also frees some to be rude, nasty and dishonest.
The Texas Supreme Court waded into a similar controversy in 2014 when an Ohio company tried to learn the identity of a critical blogger who wrote under the pseudonym Trooper. The Supreme Court backed Trooper, but along narrow grounds, ruling that Texas courts were the wrong venue to try to unmask the blogger, who had sworn under oath that he did not live or work in the state.
That 5-4 ruling included a dissenting opinion by Justice Debra Lehrmann that warned about the potential dangers of anonymous online posts.
“With the simple touch of a button, an anonymous speaker can disseminate defamatory statements to millions of readers, ruining reputations and sabotaging careers,” Lehrmann wrote. “To make matters worse … anonymous online statements — and the people who issue them — are impossible to track without the help of the Internet service provider.”
While all four dissenting justices in the Trooper remain on the court, the majority lost one member, Don Willett, who has been replaced because he now sits on a federal appeals court.
Like the Trooper case, the Glassdoor case involves Rule 202 petitions, a process named for the section of the Texas Rules of Civil Procedure that allows for limited court-ordered discovery to investigate claims before a potential lawsuit is filed.
Andra filed its Rule 202 petition three years ago in hopes of learning the identity of 10 Glassdoor users who had posted negative reviews of the company in 2014 and 2015, and the Dallas trial judge eventually ordered Glassdoor to unmask two of the reviewers:
• One who accused a supervisor of being racist and sexist and Andra of hiring illegal immigrants.
• Another who said Andra violated labor laws and tolerated harassment based on race and sexual orientation.
A state appeals court upheld the order.
During oral arguments before the Supreme Court in mid-September, Chief Justice Nathan Hecht said Andra is seeking to identify users who provided reviews that appear no different than thousands of similar online opinions about hotels, restaurants and retailers.
“Seems like, if you can discover this in this situation, there’d be no end of it,” Hecht said.
W. Alan Wright, Andra’s lawyer, said the Rule 202 order was proper because the challenged claims included facts that a court could determine to be true or false.
“Are these statements of objectively verifiable fact, or are they opinion or hyperbole? I believe, your honor, to the extent that you have someone complaining about bad food in a restaurant or something like that, I think very clearly that could be opinion or hyperbole,” Wright said. “But in this case, when there are objective statements made that Andra is hiring illegal immigrants, that they are violating the law, the court of appeals determined those were statements of objectively verifiable fact and that could be actionable on that basis.”
But Peter Kennedy, the lawyer for Glassdoor, argued that by filing a Rule 202 petition, Andra sought a back-door path to avoid discovery limits created by the Legislature to address lawsuits that restrict free speech or other constitutional rights.
“This isn’t something that can be fixed later. Once the identity has been disclosed, that’s it, your rights have been compromised,” Kennedy said.
The court is expected to rule in the coming months.
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