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Lawyer can’t discover the identity of ‘John Doe’ posters

Insults, but not defamation

Deborah Elkins//June 27, 2014

Lawyer can’t discover the identity of ‘John Doe’ posters

Insults, but not defamation

Deborah Elkins//June 27, 2014

Poster anonA lawyer cannot discover the identity of an online poster who called her a “run of the mill court appointed attorney,” a Fairfax Circuit judge has ruled.

That wasn’t even the worst of the comments offered by a John Doe poster, who also referred to Fairfax lawyer Andaleeb Geloo as “fat,” using a slur for Pakistani.

But as harsh as the comments were, they could not support a defamation claim, the court said, so Geloo could not use a Virginia statute to compel Cox Communications to identify the sources of the comments on the website

On June 23, Fairfax Circuit Judge Robert J. Smith quashed Geloo’s subpoena to Cox in Geloo v. Doe (VLW 014-8-065).

Smith’s decision is the latest in a series of cases attempting to call anonymous online posters to account. A case pending in Alexandria federal court, Westlake Group v. Schumacher, involves another Northern Virginia law firm’s defamation action based on complaints on the Yelp consumer review website about the firm’s handling of a divorce case.

Although the negative comments about Geloo skirted an allegation of false advertising, there was no real assertion of unethical conduct or reference to a complaint to the Virginia State Bar, which could be amount to defamation per se, under Smith’s analysis.

In evaluating Cox’s motion to quash Geloo’s subpoena duces tecum, Smith used the multi-part test from Yelp Inc. v. Hadeed Carpet Cleaning Inc., a case that ordered Yelp to identify purported customers who complained about a carpet company’s service and billing practices. The Yelp case is pending in the Supreme Court of Virginia.

Smith said the lawyer’s subpoena did not meet the Yelp test because she did not show a “legitimate, good faith basis” for her belief that the online communications were tortious.

The court took the statements one by one. All four statements at issue allegedly were posted January 12 and 13 in 2013.

The first statement, posted under the username “There are Other Places to Advertise,” allegedly posted, in all capital letters, “Andy – there are other places to advertise. You are a run of the mill court appointed attorney who looks for different ways to get retained cases. Either yu posted this on you put someone up to it I have never seen you actually try a case.”

In the second statement, a defendant using the username “FICTION” said: “WHO really knows if this is an actual scenario?????? I WAS GOING 200 mph and I won. Joe Blow represented me! Please. Andy please spare us this nonsense – we in Fairfax know better.”

Username “fur” allegedly posted a statement: “Andi Geloo equals FAT [Pakistani slur],” and username “skskk” allegedly posted “http://www. wow so impressive,” as the fourth statement.

Smith labeled the first statement “opinion” saying no reasonable inferences could possibly be drawn that the plaintiff herself posted or started a thread on entitled “Andi Geloo – Bullshit Artist.” The second statement was “rhetorical hyperbole,” as no reasonable inference could be made that Geloo engaged in the described conduct, Smith wrote.

He also termed the third and fourth statements expressions of opinion or rhetorical hyperbole.

Geloo argued that the first statement, taken as a whole, accused her of falsely advertising her practice.

The court rejected Geloo’s characterization of the first statement as defamation per se. Without a direct assertion of unethical conduct on the part of the attorney, the statement did not impute unfitness to perform her duties as an attorney.

“If the Defendant expressly accused the Plaintiff of falsely advertising her practice and also accused the Plaintiff of violating her ethical responsibilities to the State Bar of Virginia, this statement would, in fact, be defamation per se” under Carwile v. Richmond Newspapers Inc., 196 Va. 1 (1954), Smith said.

But the court said it could not infer the poster’s “nonsensical statement, within a thread entitled ‘Andi Geloo – Bullshit Artist,’ accused the Plaintiff of falsely advertising her practice absent a suggestion that someone should – or could file a Bar complaint against her for these actions,” Smith wrote.

Geloo could not use Va. Code § 8.01-407.1, the statute used in Hadeed, to force identification of the anonymous posters, Smith said.
Yelp users agreed to terms of service that assumed reviews posted on the Yelp website are “true facts about the people and businesses reviewed.”

In contrast, fairfaxunder clearly stated on its homepage that users could post comments about Northern Virginia and “anything Northern Virginia residents would find interesting,” and should refrain from posting “anything and everything that’s not related to Northern Virginia.” No user of the site expressly agreed their posts would be purely fact based.

The opinions and rhetorical hyperbole on the site “should be entitled to First Amendment protection and the identities of these persons should not be revealed by a subpoena duces tecum,” Smith said.

There is “strong First Amendment protection if you want to speak anonymously. You should be able to do so,” said Fairfax lawyer Steven Bancroft, who represented Cox in a special appearance to quash the subpoena. Those First Amendment rights “are not going to be given up easily. You have to prove these words were harmful” or caused damage, he said.

The language in this case was “not nice, it’s rude, but it isn’t defamatory on its face,” Bancroft said.

McLean lawyer Susan Earman and Fairfax lawyer Jason Greaves represented Geloo. Neither plaintiff’s lawyer could be reached for comment.

CORRECTION: The statement about the website has been corrected to clarify what may be posted to the website.

VLW 014-8-065

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