ZL Techs., Inc. v. Doe
13 Cal. App. 5th 603
| Cal. Ct. App. 5th | 2017Background
- ZL Technologies sued anonymous Glassdoor reviewers (Doe defendants) for libel per se and online impersonation, then served a subpoena on Glassdoor seeking identifying records.
- Glassdoor objected, arguing First Amendment and state privacy protections for anonymous speakers and that the reviews were nonactionable opinion.
- The trial court denied ZL’s motion to compel disclosure, concluding the reviews were primarily opinion and ZL had not shown wrongful conduct causing harm.
- ZL pursued alternative means to identify reviewers without success, sought renewal of the subpoena, and the trial court again denied relief.
- The court later dismissed ZL’s action with prejudice for failure to serve the Doe defendants. ZL appealed the denial of the motion to compel and the dismissal.
- The Court of Appeal reversed: it adopted a prima facie showing test (per Krinsky) with additional procedural safeguards (notice, identification of statements) and held the trial court erred in treating all reviews as nonactionable opinion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standard to compel disclosure of an anonymous online speaker | Krinsky prima facie test is appropriate; ZL must make a prima facie showing of libel elements to obtain identity | Glassdoor/Amici: adopt broader Dendrite/Cahill factors including final balancing | Court adopted Krinsky prima facie requirement and required several Dendrite-like safeguards (notice and specific statements) but declined an additional final balancing step in all cases |
| Whether Glassdoor reviews are actionable facts or protected opinion | ZL: several reviews contain provably false factual assertions (turnover rates, hiring/pay practices, public disparagement) | Glassdoor: reviews are hyperbolic, angry opinion and not provably false facts | Court held six of seven reviews contained factual assertions reasonably susceptible of defamatory meaning; first review was nonactionable opinion |
| Evidentiary showing required before unmasking (falsity/other elements) | ZL: should not have to prove falsity pre-disclosure if not a public concern; prima facie showing limited to accessible facts | Glassdoor/Amici: require plaintiff to prove falsity and stronger showing before disclosure | Court required a prima facie evidentiary showing of libel elements (including falsity where accessible) before disclosure, but limited to material facts accessible to plaintiff; where statements are libelous per se, proof of injury not required |
| Dismissal for failure to serve after subpoena denial | ZL: dismissal was improper because court denied access to information necessary to identify defendants | Glassdoor: denial of subpoena justified because speech protected; dismissal appropriate after plaintiff failed to serve | Court reversed dismissal because denial of subpoena was legal error as to the six reviews; remanded for further proceedings consistent with decision |
Key Cases Cited
- Krinsky v. Doe 6, 159 Cal.App.4th 1154 (adopted prima facie showing requirement for unmasking anonymous online speakers)
- Dendrite Int’l v. Doe No. 3, 775 A.2d 756 (N.J. Super. Ct. App. Div. 2001) (multi-factor test including notice and balancing)
- Doe v. Cahill, 884 A.2d 451 (Del. 2005) (adopted summary-judgment-style falsity showing and notice in anonymous-speaker cases)
- McIntyre v. Ohio Elections Comm’n, 514 U.S. 334 (1995) (recognizing First Amendment protection for anonymous speech)
- Bently Reserve LP v. Papaliolios, 218 Cal.App.4th 418 (explaining fact/opinion distinction and context-based test for defamatory meaning)
- Summit Bank v. Rogers, 206 Cal.App.4th 669 (discussing online forum context and skepticism due to anonymity)