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Tips on writing a review to avoid defamation

Updated 16 June, 2018

If you are reading this, Glassdoor may have informed you that you wrote a review that is more likely than most to be challenged by the company and/or persons who are the subject of your review. Glassdoor is providing the article below to offer you tips to help avoid claims of defamation.

Glassdoor is indebted to the Electronic Frontier Foundation and its ongoing fight to protect everyone's First Amendment rights online. Much of the following article is excerpted from the Foundation's blog on the same subject.

Please note - This article discusses US law. If you live outside the US, please consider the laws of your own country when writing a review.

Summary
You are entitled to post your anonymous opinions about your company or C-suite executives on Glassdoor and your speech should be protected under the First Amendment. However, you should be aware that statements of provable facts are subject to legal claims of defamation if your company and/or executives allege your statements are false.

Below, we explain why you should consider the difference between your opinion and what could be characterized as potentially defamatory statements that can be proven true or false.

Why should I care about Defamation?
If an employer challenges your Review, the most likely route they will take is to sue "Jane or John Doe" (since you publish anonymously on Glassdoor) and then serve a subpoena (make a legal demand) on Glassdoor to produce records about your identity. Glassdoor will fight, at our cost, to prevent the challenger (called a "Plaintiff" in a lawsuit) from convincing the Court to force Glassdoor to turn over what we know about your identity.

If the Plaintiff can make what is called a "prima facie showing" to the Court that your Review is defamatory, it is much more difficult for Glassdoor to prevent the Plaintiff from convincing the Court to force Glassdoor to turn over information about your identity. If Glassdoor is forced to turn over the information it has about your identity, you can still fight the defamation lawsuit with your own lawyer, but the Plaintiff would know who you are and that may be a hardship to you.

What is a Prima Facie showing?
Prima Facie is a Latin phrase lawyers and judges use in defamation cases to mean that based on the first impression, before you get a chance to explain what you meant by a statement, the statement appears to be defamatory and the Plaintiff has offered evidence that it's false.

Unfortunately, this is the standard used at the stage when a company or person is seeking to unmask an anonymous Glassdoor user, and it favors the Plaintiffs. If you say something in a Review and the Plaintiff swears in Court that what you said is untrue (or disproves your statement with other evidence), then the Plaintiff has made a prima facie showing that your statement is defamatory.

So then what is Defamation?

Generally, defamation is a false statement presented as fact that is harmful to a company or person's reputation, and published "with fault," (meaning as a result of negligence or malice). Libel is a written defamation; slander is a spoken defamation.

There are many elements that a Plaintiff must prove to win a defamation case. The most relevant element to Glassdoor's fight to prevent a Plaintiff from forcing us to unmask your identity is the "false statement of fact" element.

If the Plaintiff makes a prima facie showing that you included a false statement of fact about them in your Review, the Court may well force Glassdoor to turn over information that Glassdoor has that may expose your identity.


But wait, isn't truth a defense to Defamation claims?
Yes - truth is a defense. But Courts generally do not let Glassdoor show any evidence that what you said is true at the stage of the lawsuit where the Plaintiff is only trying to find out your identity. If the Plaintiff pursues their claim against you after they find out who you are, you can offer proof that what you said is true.

But we don't want to go there if we don't have to. We strongly suggest you not make provable statements of fact in your Glassdoor reviews. We encourage you instead to offer your "opinions" about your workplace.

Can my opinion be defamatory?
No - but merely labeling a statement as your "opinion" does not make it not defamatory. Read on for more information.

What is a Statement of Verifiable Fact?
A statement of verifiable fact is a statement that conveys a provably false factual assertion, such as "someone has committed murder" or "has cheated on his/her spouse." If you say in your Review that "the CEO uses illegal drugs at every work party", well, that's hard to characterize as an opinion. If you say instead "it seems to me there is a lot of drug use at my company" it is much more likely to be considered an opinion.

Can you give us some examples of "Verifiable Facts" and "Opinions"?
Here are examples of what California Courts have said are 'Verifiable Facts":

  • Accusing someone of awarding city contracts to friends and giving bribes;
  • Stating as "Fact" that someone falsified evidence and presented it in court;
  • Stating that based on "my own firsthand experience with this building, and its owners a landlord sought to evict 6 tenants and likely contributed to the deaths of 3 tenants and the departures of 8 others";
  • Implying a dentist failed to warn that fillings contained mercury, failed to diagnose multiple cavities, and used a general anesthetic improperly without informed consent;
  • Stating the author made a property investment with someone, that the investment failed, and that the author and the other party had conversations about the investment.


Here are examples of what California Courts have said are "Opinion" (non-verifiable facts):

  • Posting that the CEO does what she pleases with the bank she runs; that the CEO's son (a bank executive) is a "lazy fat ass", that "this is a piss poor Bank" and a "problem bank" that closed and left customers "high and dry";
  • Referring to a company's executives as "boobs, losers, and crooks";
  • Accusing someone of suckering people into a "scam" and "pump and dump" scheme;
  • Statements that someone is "dishonest and scary" and a "deadbeat dad";
  • Posting a list of "Top Ten Dumb Asses";
  • Calling someone a "big skank", "local loser", and "chicken butt";
  • Saying a university is a "suspected degree factory";
  • Calling reporting from a news organization "slanted reporting"; and
  • Characterizing a workplace as "horrible" and a "horror".


Defamation is considered in context. Different judges do not always interpret the law the same way. So, please don't take these examples to be hard and fast rules about particular phrases.

Some courts view even fact-like statements on sites like Glassdoor as opinion, but there is no telling how a specific judge may rule in an individual case. The safer bet is to avoid fact-like statements altogether and stick to statements that would be considered opinion in any context.

Does disguising the name of the person I'm writing about help?
Probably not. You can defame someone without naming them if it is reasonably clear to readers who you mean. For instance, if you defame the "government executive who makes his/her home at 1600 Pennsylvania Avenue," it is still reasonably identifiable to readers as the US president.

Separately from the question of whether or not your review is defamatory, you should know that on Glassdoor, our policy is that you can name the CEO and C-Suite (or similar) executives of a company in your Review, but not other persons in the organization. So this means you can't describe non-C-Suite persons without naming them either. You can say on Glassdoor "senior management is not listening to the concerns of the staff" but you can't say "the recently hired Director in the Marketing Department doesn't treat his staff well."

Are there other legal considerations I should take into account?
Yes. As we mentioned at the top of this article, everything we've discussed here relates to the law of Defamation in the United States. Other countries have different standards for Defamation and varying degrees of protection for anonymous free speech. If you live outside the US, please consider the laws of your country when posting a review.

Another thing to think about is whether anything in your review violates a binding contract obligation between you and your employer. For example, most employers require their employees to sign a confidentiality agreement. This means that if you disclose legitimately confidential business information in your review, your employer may have a claim against you.

Your agreements with employers may also include a non-disparagement provision or other restrictions on what you can say on sites like Glassdoor. Sometimes these restrictions are improper. For example, policies and agreement that restrict the ability of employees to discuss wages and working conditions with one another are unlawful under US Federal Law as various state laws (such as this one and this one). So your employer can be compelled to make changes to any restrictions that violate these laws.

But in other circumstances, such as when these provisions are included in severance agreements in exchange for additional payment to you, they may be enforceable. You are legally responsible for aiding by your binding, enforceable contractual agreements.

Takeaways
Help us at Glassdoor help you. Do your best to write your review as your opinion. If you choose to use language that includes statements of verifiable facts, please be advised there is a possibility you could become the subject of a Jane or John Doe defamation lawsuit subpoena. This means Glassdoor could be required by subpoena to turn over information that could be used to identify you. Since neither of us want that, we strongly encourage you to find ways to review your company that are clearly your opinion and clearly not statements of provable fact. If you do decide to include statements of verifiable facts, please do so knowing that it is more difficult for Glassdoor to prevent upset Plaintiffs (e.g. your employer) from unmasking your identity. Don't include confidential business information in your review and be mindful of any legally enforceable contract obligations you have agreed to that related to your review. And if you live outside the US, consider the laws of your country.

If you are in doubt, and you really want to make your point, ask a friend to read your Review before you post it on Glassdoor.



Remember: This FAQ is provided for informational purposes only and does not constitute legal advice. You should not rely upon this information without seeking advice from an attorney who is competent in the relevant field of law.
 

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