Geloo v. Doe
| Decision Date | 23 June 2014 |
| Docket Number | Case No. 2013-9646 |
| Court | Circuit Court of Virginia |
| Parties | Re: Geloo v. Doe |
Friedlander, Friedlander & Earman P.C.
1364 Beverly Road
Suite 201
McLean, Virginia 22021
Mr. Jason Greaves
Dycio & Biggs
10533 Main Street
Fairfax, Virginia 22030
Mr. Steven Bancroft
Mr. Matthew Roberson
Bancroft, McGavin, Horvath & Judkins, P.C.
3920 University Drive
Fairfax, Virginia 22030
Dear Counsel:
This matter comes before the Court on Defendants' motion to quash a subpoena duces tecum that had been issued pursuant to Va. Code § 8.01-407.1.
This defamation action arises from written comments made by several anonymous individuals on the website fairfaxunderground.com. Fairfaxunderground.com is a social networking message board where users, mostly anonymous, post comments about a broad range of topics.
On or about January 12, 2013 at 4:19 p.m., John Doe ("Defendants") using the username "There are Other Places to Advertise," allegedly posted—in in all capital letters—(hereinafter "Statement 1,") On or about January 12, 2013 at 4:21 p.m., a Defendant using the username "FICTION," aUegedly posted (hereinafter "Statement 2,") On or about January 13, 2013 at 4:16 a.m., Defendant using the username "fur" allegedly posted (hereinafter "Statement 3,") "Andi Geloo equals FAT PAKI." On or about January 13, 2013 at 4:19 a.m., Defendant using the username "skskk," allegedly posted (hereinafter "Statement 4,") "http://www.geloolaw.com/ wow so impressive."
Andaleeb Geloo ("Plaintiff") filed her complaint on June 4, 2013. Since the filing of this complaint, Plaintiff has issued several subpoenas duces tecum on Time Warner Cable, Verizon, and Cox Communications ("Cox"). At issue in this letter is the subpoena duces tecum issued on Cox.
On December 3, 2013, Plaintiff issued a subpoena duces tecum on Cox seeking account holder information for specified IP addresses. Defendants, by special appearance of counsel, filed a motion to quash this subpoena. On March 14, 2014, Defendants' motion to quash was granted and the Court ordered that service of the subpoena strictly comply with Va. Code § 8.01-301.1 Plaintiff issued another subpoena on Cox and the Defendants filedanother motion to quash by special appearance of counsel. On May 30, 2014, the Court heard oral argument on this issue and took this matter under advisement.
The Virginia Court of Appeals articulated the following six part test that a Plaintiff must show a circuit court in order to uncover the identity of an anonymous Internet speaker:
[A] plaintiff seeking to uncover the identity of an anonymous Internet speaker in the Commonwealth must show a circuit court that (1) he has given notice of the subpoena to the anonymous communicator via the Internet service provider; (2)(a) communications made by the anonymous communicator are or may be tortious or illegal or (b) the plaintiff "has a legitimate, good faith basis to contend that such party is the victim of conduct actionable in the jurisdiction where the suit is filed," Code § 8.01-407.1(A)(1)(a); (3) other "reasonable efforts to identify the anonymous communicator have proven fruitless," Code § 8.01-407.1(A)(1)(b); (4) the identity of the anonymous communicator is important, is centrally needed to advance the claim, is related to the claim or defense, or is directly relevant to the claim or defense; (5) no motion challenging the viability of the lawsuit is pending; and (6) the entity to whom the subpoena is addressed likely has responsive information. Code § 8.01-407.1(A)(1)(a)-(e) and (3).
Yelp, Inc. v. Hadeed Carpet Cleaning, Inc., 62 Va. App. 678, 699-700 (Va. Ct. App. 2014).
At issue in this case is whether the Plaintiff has complied with the second prong of Yelp, specifically, subpart 2(b).
The second prong consists of two, distinct subparts. Under the first subpart, the plaintiff must show that the communications are or may be tortious. If there is direct evidence demonstrating that the communications are tortious, and the plaintiff provides that evidence to the circuit courts then there is no need to analyze the second subpart of this prong. The second subpart, which is explicitly separated from the first subpart by the conjunction or, requires the plaintiff to show that he has "legitimate, good faith basis" for his belief that the conduct is tortious. Thus, the plaintiff can either show that the communications are or may be tortious or show that he has a "legitimate, good faith basis" for his belief that the communications are tortious.
Id. at 700. In addressing the second prong, the Court must balance the Defendants' constitutional right to speak anonymously over the Internet against the Plaintiff's right to protect her reputation. See id. at 703. First, the Court will turn to the issue of whether the Plaintiff fulfilled subpart one of prong two of the Yelp test.
Subpart one requires the Court to look at whether there is direct evidence demonstrating that the communications are tortious or illegal. Defamation is a type of tort2 and requires "(1) publication of (2) an actionable statement with (3) the requisite intent." Jordan v. Kollman, 269 Va. 569, 575 (2005).
Part two of the defamation test requires an actionable statement. "To be actionable, the statement must be both false and defamatory." Id. "[S]tatements of opinion are generally not actionable because such statements cannot be objectively characterized as true or false . . ." Id. at 575-76. Whether a statement is one of fact or opinion is a question of law for the court to decide. Id. at 576 (citing Chaves v. Johnson, 230 Va. 112, 119 (1985)). To determine whether an alleged defamatory statement is one of fact or opinion, a court should not "isolate one portion of the statement at issue from another portion of that statement." Raytheon Technical Servs. Co. v.Hyland, 273 Va. 292, 303 (2007). "Statements that are relative in nature and depend largely upon the speaker's viewpoint are expressions of opinion." Fuste v. Riverside Healthcare Ass'n., 265 Va. 127, 132 (2003).
Part three of the defamation test requires the requisite intent. The requisite level of intent depends on whether the Plaintiff is a public figure or private figure. Jackson v. Hartig, 274 Va. 219, 228 (2007).
[T]he [private figure] plaintiff may recover upon proof by a preponderance of the evidence that the publication was false, and that the defendant either knew it to be false, or believing it to be true, lacked reasonable grounds for such belief, or acted negligently in failing to ascertain the facts on which the publication was based.
Gazette, Inc. v. Harris, 229 Va. 1, 15 (1985). "Speech that does not contain a provably false factual connotation is sometimes referred to as 'pure expressions of opinion' and cannot normally form the basis of an action for defamation." WJLA-TV v. Levin, 264 Va. 140, 156 (2002). All statements of opinion, however, are not categorically excluded as a common law basis for defamation. See id. (citing Milkovich v. Lorain Journal Co., 497 U.S. 1, 18-21 (1990) ().
Rhetorical hyperbole is not defamatory. See Cashion v. Smith, 286 Va. 327, 339 (2013). "Statements characterized as rhetorical hyperbole are those from which 'no reasonable inference could be drawn that the individual identified in the statements, as a matter of fact, engaged in the conduct described.'" See id. (citing Yeagle v. Collegiate Times, 255 Va. 293, 295-96 (1998)). Whether a statement constitutes rhetorical hyperbole is a question of law for the court to determine. Id. at 340.
In this case, the Court must analyze whether the statements meet the definition of defamation in order to determine whether the statements are tortious as found in the first subpart of Yelp. First, the Court must determine whether the statements were published. The statements contained in the Cox subpoena were published on fairfaxunderground.com. Next, the Court must determine whether the published statements are actionable statements. Since this issue is a question of law for the Court to determine, the Court will take each statement in turn and will determine whether each statement is actionable.
Statement 1, taken as a whole, is the Defendants' opinion of the Plaintiff. This statement depends on the Defendants' viewpoint and is not provably true or false. One portion of Statement 1 ("EITHER YU [sic] POSTED THIS ON [sic] YOU PUT SOMEONE UP TO IT") could possibly be construed to be provably true or false. However, even if the Court parsed out these statements from the statement as a whole, these statements are rhetorical hyperbole. No reasonable inference could possibly be drawn that the Plaintiff herself posted or started a thread on fairfaxunderground.com entitled "Andi Geloo - Bullshit...
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