Texas Supreme Court Weighs Standard for Unmasking Authors of Anonymous Online Reviews

Austin, TX (Law Firm Newswire) November 9, 2018 – On September 19 the Texas Supreme Court hears arguments in a case that may provide clear rules for businesses seeking to track down the source of negative online reviews.

The case, Glassdoor v. Andra Group LP, raises the question: What evidentiary showing must a business make in order to unmask the author of an allegedly defamatory comment on a social media website?

Most websites that publish user-generated content will not voluntarily identify anonymous posters. Gregory D. Jordan, a business litigation attorney with the Law Offices of Gregory D. Jordan in Austin, Texas suggests that, “clear legal processes for obtaining the identity of authors of defamatory posts are critical for businesses that value their online reputation.”

In proceedings before the trial court and the Texas Court of Appeals in Dallas, Glassdoor, a job search website, argued unsuccessfully that the First Amendment and the Texas Citizens Participation Act required dismissal of Andra Group’s Rule 202 pre-suit discovery petition to obtain the identities of the authors of several posts accusing Andra Group of illegal acts.

The trial court ruled that Andra Group was entitled to learn the identity of several online posters who alleged that Andra Group was hiring illegal immigrants, violating labor laws and engaging in unlawful harassment based on race and gender. The court of appeals affirmed.

Texas first examined this issue in In re Does 1-10, 242 S.W.3d 805 (Tex. App.—Texarkana 2007), where the court adopted an approach highly protective of the First Amendment’s right to anonymity. Borrowing from a leading case out of Delaware, Doe v. Cahill, 884 A.2d 451, 456 (Del.2005), In re Does 1-10 ruled that the First Amendment requires plaintiffs to present enough evidence in support of their claim to survive a summary judgment motion before the trial court can unmask an anonymous speaker.

Recently, in In re Elliot, 504 S.W.3d 455 (Tex. App.—Austin 2016, orig. proceeding), the court held that the Texas Citizen’s Participation Act applies to Rule 202 discovery petitions and that it requires plaintiffs to provide evidence in support of each element of their underlying claim. “The TCPA is a state law that is intended to protect a party that is exercising its right of free speech, right to petition or right of association,” notes Jordan who has been involved in litigating the law’s parameters.

In Glassdoor v. Andra Group LP, the court of appeals departed from the approach taken in both In re Does 1-10 and In re Elliot. Although it agreed that the First Amendment and the TCPA obliged the trial court to examine the sufficiency of the plaintiff’s claim, it concluded that the claim to be examined is Andra Group’s Rule 202 discovery petition not its underlying claims for defamation and business disparagement. Looking at the case in this light, the court ruled that Glassdoor had failed to prove that the likely benefit of allowing the discovery outweighed the burden or expense of the procedure.

The court’s novel approach to resolving Glassdoor’s First Amendment and TCPA-based objections to unmasking the commenters is likely what attracted the Texas Supreme Court’s attention. Glassdoor argues that the court had engaged in something of an end run around the First Amendment, skirting the inquiry it contends the law requires prior to unmasking an anonymous speaker: whether the plaintiff’s claim is supported by enough evidence to withstand a summary judgment motion.

Glassdoor’s petition to the Texas Supreme Court is supported by Austin-based Indeed.com, a job search website whose terms of service call for application of Texas law to resolve disputes.

The case is Glassdoor v. Andra Group LP, No. 17-0463.