In a decision that sidestepped free speech issues presented by going after negative social media commentary, the court concluded that in order to force Yelp to fork over the identifying documents that were stored in San Francisco, Hadeed had to go to a San Francisco court and get a subpoena there to get the documents. This decision yields a convoluted result, since such a business trying to unmask an anonymous social media purveyor of defamatory online statements needs to go ‘coast to coast’ in order to get a Virginia court to obtain documents in California. This is not an efficient use of company resources already suffering from false online commentary. Also, as the dissenting justices pointed out, this result is clearly outdated since companies like Yelp probably have documents electronically available all over the country, and treating these materials like they are sitting in a 1950’s file cabinet seems absurd.
Businesses and executives need to be aware of this decision, and the fact that they can still go after anonymous online social media postings that are false and defamatory. They just need to go through an extra hoop to get a subpoena that is issued from the jurisdiction where such information is located to get the information identifying who posted false online information. Companies can still get their day in court to fight false online social media postings, but will have to do so more methodically as they fight back to maintain their online reputations.
Seth Berenzweig is managing and founding partner of Berenzweig Leonard, LLP, and often appears in the national media to discuss breaking business news.
You elide a key issue here. The mere fact an employer or anyone for that matter thinks a post is false does not mean the person posting it believes it is false or falsely posted.
ReplyDeleteI mediate court referred cases and employment cases. At mediation when parties tell their sides of the story, it often sounds like two completely different realities. One side claims it is owed money. The other side denies that. One side says it was discriminated against, the other side denies it. Truth is positional and interest driven.
I don't think your real issue is with truth or falsity. Your real issue is the social leveling effect of social media. Social media allows the little people - employees and customers - to fight back, to speak truth to power, to counterbalance the power in the workplace of employers.
And management side law firm like yours, that make hundreds of dollars per hour defending the strong against the weak, hate anything that levels the playing field and helps the little person.