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Anonymous Posts Of Alleged Trade Secrets: Free Speech?
By Michael Weil (April 23, 2018, 12:06 PM EDT)
Imagine you are an employer. Someone has anonymously posted your trade secrets
or other improper content on Glassdoor, which publishes anonymous employee
reviews about employers. While Glassdoor and similar online publishers typically
prohibit this, suppose Glassdoor disagrees that the content is improper and will not
take it down. What then? Interests collide.
On the one hand, the internet has significantly advanced the cause for the sharing
of ideas and free speech. For that reason, Congress has attempted to protect and
preserve the vibrant free market that exists on the internet by protecting website
publishers, like Glassdoor and Yelp, from liability based on their publication of third-
party content. Courts have also recognized the free speech rights of anonymous
posters to remain anonymous.
On the other hand, Congress has recognized the importance of American innovation and has passed
laws, including the Defend Trade Secrets Act, to protect against the misuse of trade secrets information.
Similarly, courts have recognized the concerns of private businesses and citizens to be free of harassing
and defamatory statements on the internet.
In 2017, several California appellate courts issued decisions that bear directly on this conflict. And, in
Hassell v. Bird, the California Supreme Court is poised to issue a key decision that pits the rights of
internet publishers against those who claim their rights have been violated by anonymous posters. This
article explores some frequent issues both employers and publishers face when they cannot agree on
the appropriateness of an online post, including the alleged publication of trade secret information.
The Communications Decency Act Creates a Strong Layer of Protection for Publishers
While filing a lawsuit against a publisher who refuses to depublish an anonymous post containing trade
secrets (or other offending content) seems like a logical first resort, it is a tough row to hoe. The
Communications Decency Act, 47 U.S.C. § 230(c), creates certain immunities for publishers. Principally, it
shields website operators from being "treated as the publisher or speaker" of material posted by the
site’s users.[1] This means that "lawsuits seeking to hold a service provider liable for its exercise of a
publisher's traditional editorial functions — such as deciding whether to publish, withdraw, postpone or
alter content — are barred."[2]
Michael Weil
