SAN JOSE — There is much to learn from a recent free-speech and internet-based employer review case, according to a New York attorney.
Though the original ruling on the work-related internet site Glassdoor Inc. against Machine Zone Inc., privately-owned technology firm, was recently been overturned to keep the anonymity of an employee who left a review on the work-related internet site secret, the loss is learnable.
“The reason why this case has achieved such notoriety is because it is a fairly egregious example of a company attempting to stifle free speech through litigation,” Aaron l. Messing, A.Y. Strauss partner and founder of the firm’s technology practice, told the Northern California Record. “Machine Zone was admittedly in a tough position. In order to allege that the nondisclosure agreement with [the anonymous employee] was breached, it needed to admit that the information revealed was in fact true.”
Messing said Machine Zone was reluctant to admit that any damaging information was true.
As the court noted, Machine Zone cannot be excused from this obligation “merely because proving a prima facie case might be embarrassing to it,” he said.
The opinion delivered in March by Sixth Appellate District Chief Justice Conrad L. Rushing and associate justices Eugene M. Premo and Franklin D. Elia, ruled that no breach of confidential contract was ever made when a former employer posted a review on Glassdoor’s website under John Doe.
“John Doe was able to preserve his anonymity (and presumably his job) because Machine Zone was unable to identify statements by Doe that disclosed Machine Zone’s confidential information, and thus Machine Zone lacked any actionable claims,” Messing said, noting that employees could find themselves at considerable risk if they publicly disclose confidential information of their employer, even if they do it anonymously.
“However, John Doe was fortunate that Glassdoor has such a strong policy in favor of anonymity and was willing to protect John Doe’s anonymity at a considerable price,” he said.
Messing said that companies would be well-advised to recognize that it is impossible to silence negative voices and criticism, even internally, and that pursuing such claims often runs the risk publicizing the information more widely.
“Ultimately, employees must make practical decisions when choosing to engage in public speech about their employers, taking into account the availability and usefulness of an anti-SLAPP statute, the likelihood of a third party to assume their defense and the nature of information being revealed,” Messing said.