Businesses responding to anonymous, defamatory online posts face strategic legal challenges, beginning with the gumshoe work required to identify the writer of the post before determining whether and how to proceed. A recent Texas Supreme Court opinion involving Dallas-based employer Andra Group and employee-centric website Glassdoor warns victims of anonymous online defamation to watch the clock on the statute of limitations if pursuing Rule 202 pre-suit discovery.
The case stems from a series of defamatory posts over an 11-month period ending in June 2015 by 10 pseudonymous contributors on Glassdoor, a popular online employer rating site that allows people to post anonymous reviews of employers.
In August 2015, Andra sought pre-suit discovery under Texas Rule of Civil Procedure 202 to reveal the anonymous reviewers’ identities and determine against whom Andra might have defamation or business-disparagement claims. Glassdoor opposed the request and filed a Texas Citizens’ Participation Act, or anti-SLAPP, dismissal motion.
In February 2016, the trial court denied Glassdoor’s anti-SLAPP motion and granted Andra’s request to unmask two of the 10 reviewers. The Dallas Court of Appeals affirmed the trial court’s decision.
Glassdoor next appealed to the Texas Supreme Court. On Jan. 25, the Texas Supreme Court issued its opinion, dodging the highly-anticipated questions of whether the Texas anti-SLAPP statute applies to Rule 202 proceedings or whether the trial court abused its discretion in granting the Rule 202 petition. The Court instead found that the Rule 202 proceeding had been rendered moot because Andra’s potential claims against the anonymous speakers were time-barred as a matter of law. Thus, in cases where the statute of limitations expires on a claim as a matter of law while a Rule 202 petition is being litigated, the Rule 202 proceeding is rendered moot.
Giving Andra the discovery rule’s benefit, the Court found that more than two years had elapsed since Andra’s causes of action accrued because the reviews were posted between July 2014 and June 2015 and Andra necessarily learned of their existence before filing its Rule 202 petition in August 2015. The Court found that Andra’s claims for business disparagement and defamation were time-barred despite the fact that Andra never learned the identity of the anonymous parties.
In ruling on the running of the statute of limitations, the Court punted the anti-SLAPP issue, despite its past acceptance of anti-SLAPP motions in many other contexts. Because the Court found that the Rule 202 petition was moot prior to Glassdoor becoming a prevailing party, it dismissed the case in its entirety and refused to grant attorneys’ fees to Glassdoor under the Texas Citizens’ Participation Act.
The Court’s ruling highlights the dilemmas presented where anonymous parties post allegedly defaming and disparaging comments to a website:
- the statute of limitations is running even if the parties are anonymous and the injured party has no information as to whom to bring suit against;
- the statute of limitations is running in favor of parties who are attempting to stop an injured party from learning the identity of the correct party against whom to act;
- a Rule 202 petition does not toll limitations; and
- it is difficult to comply with the Texas Defamation Mitigation Act, which provides that a person may not “maintain an action for defamation” unless “the person has made a timely and sufficient request for a correction, clarification, or retraction from the defendant” when the correct parties are not known.
A party who seeks to stop an anonymous poster would traditionally have two legal tools to move against the alleged defamer or disparager: a Rule 202 petition or a Doe proceeding. Because of the time involved in getting relief through a Rule 202 petition, especially when multiple appeals are involved, the Court’s ruling in this case potentially guts the pre-suit discovery process and at a minimum makes the Rule 202 petition less attractive and more risky to plaintiffs since defendants can tie up the pre-suit discovery request long enough for the limitations to run. In that instance, a party would need to seek relief through a Doe petition prior to the running of the statute of limitations in order to preserve the claims.
Nicole Williams is a Partner and Mackenzie Wallace is an Associate in the Dallas office of Thompson & Knight LLP.