By Jack Wass (Stout Street Chambers)
International civil procedure has broken into the mainstream news cycle with the US District Court ordering disclosure of the identity of former employees of a New Zealand company who posted scathing reviews of the company online.
Glassdoor, a company headquartered in California, enables employees to post anonymous reviews of their employer. One or more employees posted highly critical reviews of the New Zealand toymaker Zuru. Before Zuru could bring defamation proceedings, it had to find out the identity of the reviewers. It applied for a subpoena in the US District Court for the Northern District of California requiring the website to disclose this information. Magistrate Judge Alex Tse granted the order, opening up the potential for Zuru to bring defamation proceedings against employees who had posted under what they must have thought was a cloak of anonymity.
Debate has swirled over the implications of the decision for employees, employers and the role of online reviews more generally – see, for example, https://thespinoff.co.nz/the-bulletin/22-07-2022/the-implications-of-the-glassdoor-decision-for-new-zealanders, https://www.theguardian.com/world/2022/jul/19/glassdoor-ordered-to-reveal-identity-of-negative-reviewers-to-new-zealand-toymaker and https://www.stuff.co.nz/business/129328682/order-for-glassdoor-to-reveal-employee-identities-could-make-website-unviable.
But the decision is also an illustration of international judicial cooperation in action, and the extent to which the conflict of laws is designed to ensure that national borders do not provide a barrier of immunity. Zuru invoked § 1782, a provision of the US Code that enables a district court to assist in gathering evidence to assist proceedings in a foreign court. Whatever one’s opinion of the merits of allowing Zuru to sue (or intimidate) disgruntled former employees, the purpose of that mechanism (and the equivalent rules in New Zealand’s Evidence Act 2006) is to ensure that the trial court is able to decide the case with the benefit of all the evidence it requires, so that a defendant cannot hide behind the fact that relevant evidence happens to be in a server in another country.
In making his decision, Judge Tse was alert to the competing policy concerns. He had to consider the relevant New Zealand authorities to satisfy himself that a claim in defamation under New Zealand law was tenable, and concluded that the reviewers’ expected reliance on a defence of honest opinion was a matter for trial that did not justify refusing disclosure in the first place. It remains to be seen whether Zuru will pursue a defamation action, or whether it was a sensible public relations decision to embark on the exercise in the first place, but the decision is a useful illustration of the practical significance of international civil procedure.