COURTS

2 online critics can stay anonymous, Texas Supreme Court says

Justices rule that passage of 4 years since scathing reviews means Dallas company's pursuit of suit comes too late

Chuck Lindell
clindell@statesman.com
Glassdoor's website solicits reviews of companies from current and former employees, allowing respondents to remain anonymous. [COURTESY PHOTO]

Glassdoor, a popular online forum that solicits reviews of companies, does not have to identify two anonymous users who posted scathing condemnations of a Dallas company, the Texas Supreme Court ruled Friday in a closely watched case involving free speech rights on the internet.

Andra Group, a Dallas clothing retailer, wanted to know the identity of two reviewers who claimed the company allowed illegal activity, harassment and discrimination.

Arguing that the depictions were false, Andra said the identities were needed to determine whether to sue the reviewers for libel or business disparagement.

Glassdoor fought the request with support from Twitter, Yelp and other online platforms, arguing that accommodating Andra would violate the First Amendment right of reviewers to speak anonymously and set a dangerous precedent for all online users and platforms.

A Dallas trial judge and the Dallas-based 5th Court of Appeals ordered Glassdoor to identify the reviewers, ruling that Andra reasonably assumed that the information would help it develop a defamation lawsuit.

The Texas Supreme Court, however, reversed the lower courts and dismissed Andra's claim, saying Friday there was nothing to rule on because too much time had passed since Glassdoor published the reviews in 2014.

With no lawsuit possible because there is a two-year statute of limitations on business disparagement claims and a one-year limit on libel, the court said it could not rule on the meatier issues, including possible limits on free speech rights in the digital age.

The unanimous ruling did clarify the court's thinking on what qualifies as a publication date on the internet, particularly for information that can be accessed years later by a single click of the mouse.

Just like mass publications, the statute of limitations for online posts generally begins running on the date the information becomes available to the public, Justice Debra Lehrmann wrote for the court.

Lehrmann acknowledged that the court heard from advocates who argued that potentially defamatory claims should have a more loosely defined publication date if the information is not available to the general public or difficult to find via common search engines.

"We need not address this concern here, as Andra highlights Glassdoor’s 'high number of visitors and visibility to the general public,’” Lehrmann noted.

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 in August 2015 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.

The reviewers claimed to be current or former employees of Andra, and the company said learning their identities was important to ensure that the reviews weren't posted by a competitor or by one person posing as multiple users.

Companies must have a way to protect against false criticism that can hurt investors, employees and profits, Andra argued.

But Glassdoor said forcing it to reveal user identities would deter reviewers from posting on its website and open them to retaliation by current and future employers.

"We are pleased that the anonymous identities of Glassdoor's users remain protected," said Pete Kennedy, an Austin lawyer representing Glassdoor.

Even so, he said, the company was disappointed that the court declined to establish standards that better protect "the First Amendment rights of people to speak freely about their opinions and experiences, at work and elsewhere, without fear of intimidation or retaliation.”

Andra's lawyer could not be reached Friday.