The Virginia Defamation Law Blog
Virginia practitioners will know more about this topic in a few months, when the Supreme Court of Virginia decides Yelp, Inc. v. Hadeed Carpet Cleaning, but for now, we have an opinion from Fairfax Circuit Court applying the six-part test established by Yelp for uncovering the identity of anonymous Internet speakers.
The case is Geloo v. Doe, decided June 23, 2014. Fairfax attorney Andaleeb Geloo filed a defamation action against various anonymous posters to the Fairfax Underground site and sought to uncover their identities by issuing subpoenas to Time Warner Cable, Verizon, and Cox Communications. At issue were statements referring to Ms. Geloo as a “run of the mill court appointed attorney” and a “fat Paki,” and a statement accusing Ms. Geloo herself as being the secret author of a discussion thread entitled “Andi Geloo – Bullshit Artist.”
Cox moved to quash the subpoena and the court, applying the Yelp test as well as Va. Code Section 8.01-407.1, granted the motion. The Yelp test requires, as a prerequisite to enforcing a subpoena designed to reveal anonymous Internet posters, that the plaintiff demonstrate that (1) notice of the subpoena was given to the poster; (2) the online statements are or may be tortious or illegal, or that the plaintiff has a “legitimate, good faith basis” to believe that they are; (3) other reasonable efforts to uncover the person’s identity have been fruitless; (4) the 
person’s identity is needed to advance the claim or is directly relevant; (5) there is no pending demurrer or motion to dismiss; and (6) the recipient of the subpoena is likely in possession of responsive information.
The issue here was #2 – whether the Fairfax Underground statements were defamatory, or whether Ms. Geloo has a legitimate, good faith basis to believe they were defamatory. The court answered “no” to both questions. Simply stated, the statements were not defamatory because they were either constitutionally protected opinion, or mere rhetorical hyperbole that no reasonable reader would interpret as having defamatory meaning.
Interestingly, even after concluding that the statements were not defamatory, the court proceeded to analyze whether the statements might be actionable as defamation per se. I say “interestingly,” because in my view, defamation per se is not an independent tort but rather a specific type of defamation. My understanding has always been that if a statement is not defamatory, then by definition it cannot be actionable as defamation per se. In any event, the court concluded that the statements were not actionable as defamation per se.
On the issue of whether Ms. Geloo had a good-faith basis to believe the statements were actionable, the court held that supporting documentation should be provided to the court as Hadeed Carpet Cleaning had done in the Yelp case. Absent such evidence, the court was unable to find a legitimate basis for believing the statements to be defamatory and unwilling to force the disclosure of the identity of the anonymous commentators.
As mentioned above, the Yelp case is currently on appeal. One of the issues is whether Hadeed Carpet Cleaning had actually produced sufficient evidence that the gist of the online criticisms was untrue.