Initial thoughts on ZL vs. Gartner

I find ZL's legal action against Gartner to be quite interesting for a couple of reasons (although I want to be clear at the outset that I am not taking any sort of public position for or against either party to this lawsuit):

• First, it raises the issue of Constitutional rights in the tech industry, something we don't see all that often in this space.
• Second, this lawsuit is making news at roughly the same time that the FTC decided that bloggers must disclose if they are being paid by the companies whose offerings they endorse.

With regard to the first point, I don't think the lawsuit will have much impact. Reviewers' comments have almost always been regarded as free speech -- for example, it's quite rare that a movie reviewer or restaurant critic will be sued over his or her negative comments. Even though commercial speech is much more restricted by government than personal speech, I don't believe that the First Amendment argument will be key in driving this action forward.

However, I believe that the lawsuit is much more interesting in the context of the FTC's recent decision regarding bloggers. While Gartner's reviews are the result of in-depth research and are clearly not off-hand remarks as are many blog posts, and while the FTC decision had nothing to do with the ZL case, I believe that any judge hearing the case may, at the very least, be influenced by the FTC's decision, raising several questions:

• Because at least some of the vendors Gartner reviews are also its customers, will some sort of disclosure about any payments need to be made in future publications of Gartner's Magic Quadrant?
• Will a judge hearing this case demand to know if there is a correlation between payments and a vendor's placement in the MQ? I'm not alleging that there is any sort of correlation, but the question may be raised.
• Will a judge require that the internals of the MQ methodology be disclosed to all vendors that are evaluated?

Clearly, the MQ is extraordinarily valuable to Gartner and they have been very successful with it. Corporate decision makers give it enormous credence, vendors work hard to be placed properly in it, and those not so placed can potentially suffer revenue loss.

There is a hearing being held today on Gartner's motion to dismiss the case based on First Amendment protections. We'll continue to monitor the case.