David Coale Publishes,

David Coale Publishes, "Who Said That? Rule 202 Petitions and Anonymous Online Reviews", in Texas Lawbook

By David S. Coale of Lynn Pinker Cox & Hurst
“I wish I knew who said that!” is the typical response of business owners after reading anonymously posted online reviews.
In Glassdoor, Inc. v. Andra Group, LP,  the Dallas Court of Appeals recently offered some practical guidance for businesses seeking more information about anonymous online comments, as well as for websites resisting such information requests.
Glassdoor, Inc. maintains a website on which anonymous users posted negative reviews of Andra Group, LP as an employer. Andra filed a petition under Texas Rule of Civil Procedure 202 for a pre-suit deposition of Glassdoor, seeking to discover the identities of those reviewers. In response, Glassdoor filed a motion to dismiss under Texas’ anti-SLAPP statute. The trial court denied that motion and granted, in part, Andra’s petition.
The Dallas Court of Appeals affirmed, finding no abuse of discretion. Its opinion notes several factors that supported the trial court’s ruling:
  1. The trial court limited the scope of the deposition to two specific posts about alleged wrongdoing by Andra management, and to five statements within those posts.
  2. Andra offered detailed proof of its potential injury from alleged business disparagement. Specifically, it presented three witnesses by affidavit:
    1. its human resources manager, describing particular candidates who turned down interviews as a result of the posts;
    2. Andra’s president, who said his company had to start using recruiting agencies for the first time after the posts appeared, and;
    3. a web developer hired by Andra through a recruiter, who said he had decided not to apply to Andra directly because of the posts.
  3. The statements at issue made specific claims about unlawful activity, which meant they were “accusations of illegal conduct that are capable of being proved true or false.” Accordingly, they were not “rhetorical hyperbole or mere personal opinion” that would not support disparagement claim.
  4. While the First Amendment protects the right to speak anonymously, that right must be balanced against other considerations. Andra’s proof was “sufficient to raise a genuine fact issue” about a potential claim, and it sufficed to show that the trial court did not abuse its discretion in granting the petition.
The trial court properly rejected a “mirror image” anti-SLAPP motion for these same reasons.
The appeals court’s opinion in Glassdoor summarizes the key principles for litigation regarding the identity of persons who post anonymous online reviews. The more specificity that a business can show about particular offensive statements in a review – and the specific harm resulting from those statements – the greater its chances will be of obtaining discovery about the poster’s identity.
Absent such evidence, the anti-SLAPP statute presents a deterrent to unfounded requests by potentially requiring the plaintiff to pay the costs and attorneys’ fees associated with the response.
David Coale is a partner at Lynn Pinker Cox & Hurst where he specializes in appellate law.
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