How to Stop Disparaging Reviews from Former Employees Through Aggressive Litigation

Any employer, large or small, may run the risk of dealing with disgruntled ex-employees. One common problem employers face is negative and false reviews about their businesses left by former employees on Glassdoor or similar platforms. The biggest problem for most employers is that these false reviews tend to be posted with no clear way to identify the anonymous reviewer and take legal action. The purpose of this blog is to make employers aware that there are practical, legal solutions to find out the identity of an anonymous reviewer, and to help employers avoid common pitfalls in pursuing litigation against posters of defamatory and false reviews. Below is a step-by-step guide that will instruct employers on how to litigate against these anonymous reviewers and put a stop to their lies.

Step 1: ID the Lies – Sue for False or Disparaging Reviews

It’s best to begin by working with general or outside legal counsel to identify information in the reviews as defamatory. After the information is identified, the next step is to file a John Doe lawsuit. John Doe lawsuits allow an employer to commence legal action against a currently unknown, anonymous review poster. Once the lawsuit is filed, the plaintiff-employer may have different options depending on their state. One option is to depose Glassdoor and/or other employment platforms to investigate any potential claims for defamation or business disparagement. Glassdoor, Inc. v. Andra Group, L.P., 575 S.W.3d 523, 524 (2019). This is often done through state rules of civil procedure, but a statute of limitations may apply to limit these kinds of deposition requests, as it did in this Texas case.

Another option is to subpoena Glassdoor or other review sites for the information identified as defamatory. This will secure the reviews themselves so that they may be used as evidence against any former employees responsible for the defamation. Preservation of evidence letters should be sent to all suspected parties relative to the review in order to ensure evidence is not destroyed during the pendency of the matter.

Step 2: ID the Liar – Subpoenas to Find the Anonymous Reviewer

With the information secured, more work may be required to actually identify the poster. In spite of the anonymity granted to them through Glassdoor, an anonymous reviewer may still be identified through other technological means. There are legal avenues to use this technical information to track, locate and identify the user responsible for the anonymous, defamatory posts. One way this is done is by issuing a subpoena to the IP address and email address provider for the most direct identification of the anonymous reviewer. As a New Jersey court noted, “Information contained in postings by anonymous users of ISP message boards can form the basis of litigation instituted by an individual, corporation or business entity under an array of causes of action, including breach of employment or confidentiality agreements; breach of a fiduciary duty; misappropriation of trade secrets; interference with a prospective business advantage; defamation; and other causes of action.” Dendrite Intern., Inc. v. Doe No. 3, 775 A.2d 756, 760 (2001) (emphasis added).

Courts may apply different standards and procedures when evaluating subpoenas of IP addresses, email address providers, or other entities to identify anonymous internet posters. Some courts follow the Dendrite standard which involves greater scrutiny of the plaintiff -employer’s cause of action before allowing the speaker to be identified. Krinsky v. Doe, 72 Cal. Rptr. 3d 231, 241 (2008) (emphasis added). The Dendrite standard has four main parts.

• A trial court will require the plaintiff-employer to undertake efforts to notify the anonymous posters that they are the subject of a subpoena, and those efforts should include posting a message of notification of the identity discovery request to the anonymous user on the ISP’s pertinent message board. Dendrite Int’l Inc., 775 A.2d at 760.
• The plaintiff must set forth the exact statements purportedly made by the anonymous poster that the plaintiff alleges constitute defamatory speech. Doe v. Cahill, 884 A.2d 451, 460 (2005) (citing Dendrite Int’l Inc., 775 A.2d 756).
• The plaintiff must satisfy a prima facie case that can survive a motion to dismiss for failure to state a claim and includes sufficient evidence supporting each element of its cause of action.
• Finally, the court will balance the defendant’s First Amendment right of anonymous free speech against the strength of the prima facie case presented and the necessity for disclosure of the anonymous defendant’s identity in determining whether to allow the plaintiff to proceed. Id.

Other courts may follow the Cahill standard which requires a plaintiff to support their defamation claim with facts sufficient to create a summary judgment motion. Krinsky, 72 Cal. Rptr. 3d 231, 243 (2008). This standard retains the notification provision of the Dendrite standard’s first prong. Cahill, 884 A.2d at, 460. However, the second and fourth prongs of the Dendrite standard are cast aside under Cahill, relinquishing the plaintiff of a requirement to set forth the exact defamatory statements and ending the first amendment and prima facie balancing test Dendrite requires. However, the Cahill court noted these prongs were subsumed by the summary judgment standard which itself requires a balancing and would likely subsume the second prong of Dendrite. Cahill, 884 A.3 at 461.

Step 3: Stopping and Taking Down the Disparaging Reviews

Once the poster has successfully been identified, amend the lawsuit to name the person or persons. One lawsuit may only directly affect the named parties. However, many employers use just a single lawsuit against one anonymous reviewer to deter further defamatory behavior. To this end, a press release naming the lawsuit can help an employer point out the defamation. Aggressive employers do not settle. Instead, many employers opt to push the defendant to trial and collect substantial damages at trial to make an example out of the poster. A challenge employers must overcome is sufficiently alleging and proving that a significant deleterious effect was caused by anonymous postings or by failing to involve any outside experts. Employers should not rely on the equivocal statements of other employees to establish damages. Avoid that mistake by involving an economist or other outside experts to provide detailed accounts of the harm these anonymous posts cause to the business.

Conclusion

In conclusion, employers do not need to sit idly by while disgruntled ex-employees spread lies anonymously. Defamation of this kind can be fought in the courts. However, employers must be aware of the pitfalls covered here to successfully utilize this legal solution. Act quickly to avoid statute of limitations issues that may prevent litigation from proceeding. Be thorough and specific in compiling the defamatory information to use at trial. Be aware of the stringent first amendment and other statutory protections which may apply to preserve the anonymity of the poster or quash subpoenas. Understand which standard the court may apply when evaluating said subpoenas. And be prepared to show how the defaming statements caused actual damages. A full understanding of the challenges and potential of this legal action allows employers to better defend their businesses from defamation.