Freedom of Speech v. Financial Harm: A look at when the Anonymous Posting of Online Reviews will uphold its Privacy

Posting online has become a norm in this tech savvy world that we live in.  For greater transparency in a review, some may choose to post anonymously in fear of ramifications if their name disclosure came about.  Just recently, the ability of an employer being able to find out which employee employer-rated an employer unfairly or inaccurately was assessed by the Courts. This is since some would argue that surely the law protects against outrageous false statements that harm an employer’s ability to recruit talent.  That is why a California appeals court recently ruled that businesses have to prove online comments are false and financially harmful before they can unmask anonymous critics via subpoenas.  It can thus be seen that the decision has First Amendment implications which safeguard people’s right to free speech and this was valued as being the greater consideration.

A suit under the anonymous posting was brought forwards for libel and for violating California law regarding online impersonation.  A request was placed for assistance from the courts in an ability to be able to retrieve the identity of the postings. Initially, the trial court turned the employer down and this was again examined by a California Court of Appeal.Subsequently, the lengthy opinion was issued and a conclusion was drawn indicating that to force a disclosure of the names, a plaintiff must state a legally sufficient cause of action comprising of the following elements of that cause of action:  (1) the courts determining these issues must ensure that reasonable efforts are made to notify the unknown defendants so they can respond and (2) the plaintiff’s pleading must specifically note the exact statements alleged to constitute defamation.

Applying this standard, the Court reversed the trial court’s denial of the plaintiff’s motion to compel.  It concluded that plaintiff had alleged a legally valid cause of action, rejecting a contention that the postings at issue were non-actionable statements of opinion rather than fact. The Court based this conclusion on the clear language of the reviews and a description of the website, which communicated that it contained facts, rather than opinions. Accordingly, the Court ruled that businesses have to prove online comments are false and financially harmful before they can unmask anonymous critics via subpoenas.

Thereafter, the Court sent that issue back to the trial court to resolve. It instructed the trial court that, while proof of falsity may or may not be a required element of plaintiff’s claim, such proof was necessary in this case given the importance of protecting First Amendment rights. On the other hand, while the plaintiff must make an evidentiary showing establishing a prima facie case, the burden is not high; all the plaintiff need identity is sufficient evidence to prevail, it is evidence were believed.

Such cases clarify the availability of subpoena when employers are faced with anonymous, false posts.  If the statements made are defamatory, and, the employer can show that they are false, this case provides some relief for those efforts.  There must exist the right to protection of putting ideas into the marketplace without the fear of harassment. The takeaway from the decision is that a company would need to show how it was harmed, for instance,  a decline in revenue, say, or a falling stock price.

The case does not, however, more specifically address gray areas such as negative reviews on consumer based review methods.  Nor does it address ramifications for those who spread fake news or vicious insults. Facebook mandates that “the name on your profile should be the name that your friends call you in everyday life.” A troll could, however, still set up a fictitious account. A means of identification with sites like this and Twitter could still be called into question and may be analyzed by the courts in subsequent cases.   Please feel free to always discuss these issues with Attorneys at our law firm.

Our Waukegan IL libel and slander lawyers concentrate in this area of the law. We have defended or prosecuted a number of defamation and libel cases, including cases representing a consumer sued by a large luxury used car dealer in federal court for hundreds of negative internet reviews and videos which resulted in substantial media coverage of the suit; one of Loyola University’s largest contributors when the head basketball coach sued him for libel after he was fired; and a lawyer who was falsely accused of committing fraud with the false allegation published to the Dean of the University of Illinois School of Law, where the lawyer attended law school and the President of the University of Illinois. One of our partners also participated in representing a high profile athlete against a well-known radio shock jock.

Our Chicago defamation attorneys defend individuals’ First Amendment and free speech rights to post on Facebook, Yelp and other websites information that criticizes businesses and addresses matters of public concern. Our Chicago Cybersquatting attorneys also represent and prosecute claims on behalf of businesses throughout the Chicago area including in Hinsdale and Winnetka who have been unfairly and falsely criticized by consumers and competitors in defamatory publications in the online and offline media. We have successfully represented businesses who have been the victim of competitors setting up false rating sites and pretend consumer rating sites that are simply forums to falsely bash or business clients. We have also represented and defended consumers First Amendment and free speech rights to criticize businesses who are guilty of consumer fraud and false advertising.

Super Lawyers named Chicago and Oak Brook business trial attorney Peter Lubin a Super Lawyer in the Categories of Class Action, Business Litigation, and Consumer Rights Litigation. Lubin Austermuehle’s Oak Brook and Chicago business trial lawyers have over thirty years of experience in litigating complex class action, consumer rights, and business and commercial litigation disputes. We handle emergency business law suits involving injunctions, and TROS, defamation, libel, and covenant not to compete, franchise, distributor and dealer wrongful termination and trade secret lawsuits and many different kinds of business disputes involving shareholders, partnerships, closely held businesses and employee breaches of fiduciary duty. We also assist businesses and business owners who are victims of fraud or defamatory attacks on their business and reputations.

Lubin Austermuehle’s DuPage County defamation and slander lawyers near Highland Park and Deerfield have more than three decades of experience helping business clients unravel the complexities of Illinois and out-of-state business laws. Our Chicago business, commercial, class-action and consumer litigation lawyers represent individuals, family businesses and enterprises of all sizes in a variety of legal disputes, including disputes among partners and shareholders as well as lawsuits between businesses and consumer rights, auto fraud, and wage claim individual and class action cases. In every case, our goal is to resolve disputes as quickly and successfully as possible, helping business clients protect their investments and get back to business as usual. From offices in Oak Brook, near Westmont and Hinsdale, we serve clients throughout Illinois and the Midwest.

If you are the victim of a defamatory attack on your business or a consumer who has been sued to stop you from posting criticism of a business online at Yelp or anywhere else, contact one of our Oak Brook and Chicago defamation lawyers for a free consultation at 630-333-0333 or online by filling out our contact us form.


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