Virginia Lawyers Weekly VA Lawyers Weekly
Gov. Terry McAuliffe has approved a new law to make it easier to sue online mudslingers.
The governor’s March 16 signature will add extra time for victims of anonymous Internet defamation to learn the identities of their tormentors. The current one-year limitations period for defamation lawsuits can operate as a bar to litigation.
The reform measure initially was drafted by Fairfax lawyer Andaleeb “Andi” Geloo, who claimed she was libeled by pseudonymous writers on an unrestrained online forum called “Fairfax Underground.”
Patroned by Del. David B. Albo, Geloo’s bill sailed through the General Assembly with only one modification and no apparent opposition.
House Bill 1635 – now Chapter 128 of the Acts of Assembly for 2015 – tolls the statute of limitations for anonymous publishers until the identity of the publisher is discovered or reasonably should have been discovered through due diligence.
“The reason I put the bill in is because this thing has ramifications all over the place,” Albo said. “In most cases, it’s impossible to get information within a year from an Internet service provider.”
Geloo – who said she was maligned by anonymous writers on the Fairfax Underground site – lost the chance to proceed against one alleged malefactor in part because of the one-year bar. She later won the opportunity to go forward against another defendant.
“We actually got two different results in the same courthouse,” Geloo said.
As originally introduced, the legislation would have changed the defamation limitations period to two years and allowed tolling against an “unknown defendant” for Internet libel. The standard for tolling would have been “for good cause.”
The House Courts of Justice committee suggested changes which were ultimately signed into law. The limitations period remains one year, but the statute of limitations is tolled “until the identity of the the publisher is is discovered or, by the exercise of due diligence, reasonably should have been discovered.”
The “due diligence” element should prevent extreme delay in the pursuit of libelous writers, said Reston attorney Lee E. Berlik.
Berlik represents both plaintiffs and defendants in defamation cases and publishes “The Virginia Defamation Law Blog.”
“I think that due diligence provision addresses the concern about the possibility of having a lawsuit drag on and on,” Berlik said.
Berlik said he approved of the change in the law because most people who post disparaging comments do so anonymously, and it takes time to figure out who they are.
Many commenters who post under assumed names “will do it from the comfort of their own home,” Berlik said, making it relatively easy to track their Internet address.
Other, more cagy writers can use Internet portals in coffee shops or other outside services to make it much harder to learn their identity.
“It could be literally impossible to track the person down in 12 months,” even using due diligence, Berlik said.
A court should demand evidence of real effort, he said.
“There should be a showing that you issued subpoenas to everyone you needed to issue subpoenas to and asked the right questions of the right people,” Berlik said.
Last June, Circuit Judge Robert J. Smith quashed Geloo’s subpoena to compel an Internet provider to disclose the Internet protocol address of one of her “John Doe” defendants.
Smith’s reasoning included a finding that the comments – including a racial slur – did not support a defamation claim.
Later, Judge John M. Tran dismissed the entire action with prejudice based on the statute of limitations, lawyers involved in the case said.
Smith’s decision came in Geloo v. Doe (VLW 014-8-065).
Lawyers and others have encountered obstacles trying to recover for alleged online libel.
The 4th U.S. Circuit Court of Appeals this month denied relief for a Northern Virginia lawyer who sued Yelp over a critical review posted on the company’s website.
In a separate case, the Supreme Court of Virginia has yet to rule on the effort by a carpet cleaning business to find out who posted bad reviews on Yelp.
Albo pointed to the Yelp cases, saying his legislation has implications for many people affected by online comments.
“It’s one of those things that only lawyers talk about, but everybody should,” he said.
