It is no longer uncommon for individuals to anonymously post disparaging comments online about their employers and supervisors when they believe they have been wrongly fired, disciplined unnecessarily or treated unfairly. There are a number of places on the Internet that attract such negative posts or blogging, including job rating websites (Glassdoor, JobBite), consumer complaint or rating websites (Complaints Board, Yelp) and even a company's own Internet message boards.
When employers discover these unwanted posts, they soon learn that they have few legal options to get them removed or to discover the identity of the author. Section 230 of the federal Communications Decency Act of 1996 provides broad civil immunity to websites that contain information provided by others. This effectively prevents aggrieved companies or individuals from suing the owner of a website for libel, unless the site itself is the provider of the harmful information at issue. However, according to the federal Telecommunications Harassment statute (47 U.S.C. § 223), websites that knowingly permit their site to be used for anonymous postings "with intent to annoy, abuse, threaten or harass any person" do risk potential criminal exposure.
Fortunately, there are several tactics employers can consider in their efforts to have unwanted content removed or determine the author of an anonymous post.
File a Pre-Suit Petition to Discover Anonymous Authors
Thanks to an appellate court decision in Illinois, another option recently became available for employers. Maxon v. Ottawa Publishing Co., decided in June 2010, allows use of a pre-suit Rule 224 petition to potentially discover the identity of individuals who publish anonymous posts. Historically, Rule 224 petitions have been used in Illinois to ascertain the identity of potential medical malpractice defendants for anticipated personal injury lawsuits. In Maxon, the victims of defamatory posts filed a Rule 224 petition seeking the identity of the individuals responsible for posting these comments on a newspaper website owned by Ottawa Publishing Company. Although the trial court initially dismissed the petition, the appellate court reversed and held that "anonymous Internet speakers do [not] enjoy a higher degree of protection from claims of defamation than the private individual who has a cause of action against him for defamation."
Given that "there is no constitutional right to defame," the Maxon court found no need for additional procedural protections beyond Rule 224 "to protect any anonymous individual from any improper inquiry into his or her identity." Therefore, Maxon imposes only the following requirements to obtain the identity of anonymous individuals:
- The petitioner must file a Rule 224 verified (sworn) petition that states the reason pre-suit discovery is necessary;
- Discovery must be limited to learning only the identity of the potential defendant; and
- Before discovery is permitted, the trial court must hold a hearing to determine whether the petition sufficiently states a cause of action (e.g., defamation, breach of contract).
Use Employment Agreements to Prevent Negative Posts
In Maxon, petitioners sought the identity of the anonymous bloggers in order to pursue them as defendants in a defamation suit. Defamation claims, however, are difficult and expensive to prove. Defamation means that the defendant made a false statement of fact about the plaintiff, which the defendant published to a third party and which damaged the plaintiff. Statements may not be defamatory if they are "reasonably capable of an innocent construction" or an "expression of opinion."
As an alternative, you may wish to draft your employment agreements to include non-disparagement covenants that prohibit current and former employees from making open and anonymous Internet posts that disparage the company and its personnel. With that language in place, violations could be pursued as breach of contract claims. If the agreement also requires the current or former employee to pay your legal fees and other costs to enforce the non-disparagement covenant, the entire financial burden of a lawsuit would shift to the employee. Ultimately, these significant risks could lead employees to think twice about posting disparaging comments online.© 2013 Much Shelist, P.C.