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.”
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In bankruptcy court, the presumption in favor of public access to judicial records can be overcome if “scandalous or defamatory matter” is contained in a paper filed therein. (See 11 U.S.C. Section 107). Curiously, there is an absolute judicial privilege for statements made in connection with and relevant to a judicial proceeding, so normally one wouldn’t expect to find “defamatory matter” in a court filing. Still, there is a relevance requirement to be entitled to the privilege, and there’s always a possibility that potentially defamatory or scandalous statements will be made in a court filing that have nothing to do with the underlying merits. And that’s exactly what happened in the recent case of Robbins v. Tripp.

Attorney John W. Tripp was handling a case in bankruptcy court when certain issues arose relating to perceived problems with his practice. The court ordered him to prepare and file a report containing details relating to his organization of files, supervision of staff, communication with clients, and related matters. The bankruptcy court instructed that the report be written “candidly and not as an advocate for any party to this matter.” Mr. Tripp moved for leave to file the report under seal, based in part on Section 107’s “scandalous or defamatory” provision. The motion was granted, and the trustee appealed.
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Before rushing to the courthouse to sue someone for libel or slander, there are a number of things one should consider. For one thing, even if no counterclaim is filed, filing a defamation action opens the door to all kinds of personal details about your life that you may prefer to keep private. To prevail, a plaintiff needs to prove that the defamatory statement was false. The defendant–the person who made the statement–doesn’t need to prove anything. Think about what that means as a practical matter. If someone Tweeted to a million followers that you are some kind of sexual deviant and that you had sex with a wildebeest (and assuming that the Tweet was understood and believed by readers as a literal statement and not as mere rhetorical hyperbole), and you decide to sue for defamation, you will need to prove that you did NOT actually have sex with a wildebeest. How does one prove such a thing? Well, generally by presenting evidence to the jury about what kind of sex life you DO have so that they can see that you are not the sort of person who would do such a thing. Or maybe you throw in some evidence about your documented fear of antelope. Either way, it could be embarrassing.

There’s also the libel-proof doctrine to consider. Because the tort of defamation is concerned primarily with damage caused to one’s reputation, some courts have held that when a plaintiff’s reputation is already so tarnished at the time a defamatory statement is published that it would be virtually impossible to make the reputation worse, the plaintiff will be deemed “libel proof” and the case will be dismissed prior to trial. If the defendant claims you are libel proof, think of what fun the discovery process will be for you, as the defendant goes about digging for evidence about how bad your reputation already is.
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Insurance against defamation claims is often found in policies providing coverage for liability arising from “personal and advertising injury.” In State Farm Fire and Casualty Co. v. Franklin Center for Government and Public Integrity, for example, the United States District Court for the Eastern District of Virginia examined a business liability insurance policy to determine whether State Farm was required to defend the insured in a lawsuit alleging claims for defamation and tortious interference. The court considered the plain language of the policy and its exclusions and ultimately held that State Farm had an obligation to defend its insured.

Franklin Center for Government and Public Integrity (“FCGPI”) operates the Watchdog.org website. GreenTech Automotive, Inc., filed a civil action against FCGPI alleging defamation and intentional interference with business and prospective business relations stemming from two articles posted on Watchdog.org. FCGPI was insured by a State Farm business liability policy, and State Farm brought a declaratory judgment action seeking a declaration of non-coverage based primarily on various policy exceptions.
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If Sally Ferreira‘s allegations are true, she has a valid claim for defamation per se against rapper 50 Cent which could possibly result in a seven-figure damages award. Ms. Ferreira, an actress, model, and dancer, sued 50 Cent (real name Curtis J. Jackson, III) for defamation and emotional distress in federal court in New York, making the following allegations:

Ms. Ferreira has appeared in music videos for various artists such as 50 Cent, Kanye West, Jay Z, Nicki Minaj, Missy Elliot, and Lil’ Kim. In March, Ms. Ferreira participated in 50 Cent’s music video for the song “Big Rich Town,” filmed on the subway in the Bronx. Shortly after the video shoot, leaked photographs of Ms. Ferreira and 50 Cent taken during the shoot appeared on Hip Hop Weekly and MediaTakeOut.com, along with commentary speculating (erroneously) that the two were spotted riding the subway together and that they were romantically involved.
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In James M. Tharpe, Jr. v. Rudy K. Lawidjaja, currently pending in the Lynchburg Division of the Western District of Virginia, plaintiff James Tharpe, a professional soccer coach and part-time model, alleges that photographer Rudy K. Lawidjaja persuaded him to pose nude after assuring him that no photographs showing Tharpe’s genitals or buttocks would be distributed. Lawidjaja took numerous nude photos of Tharpe and promoted him as a model. Eventually, the parties’ relationship deteriorated. Tharpe refused Lawidjaja’s invitation to quit his job as a soccer coach to relocate to the Washington, D.C. area and serve as Lawidjaja’s “house model.” Instead, he moved to Tennessee, where he coached soccer for a year, and later accepted a coaching position with Central Virginia United Soccer Club (“CVUS”) in Lynchburg.

In August 2011, CVUS notified Tharpe that an Internet search of his name returned inappropriate and embarrassing photographs of which parties associated with the soccer club did not approve. According to the court’s examination of the record, Lawidjaja had posted nude photographs of Tharpe on his website as well as other sites, identified Tharpe as a “porn star,” and digitally altered the photographs to depict Tharpe with an erection and ejaculating for the camera. The court found that Lawidjaja tagged these pornographic photographs with keywords to link the photos to CVUS (Tharpe’s employer, which had nothing to do with the photos) so that any Google search for CVUS would return the photographs. Tharpe sued Lawidjaja for defamation, intentional infliction of emotional distress, and other torts.
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Concerns that freedom of online speech would be chilled if Internet Service Providers were liable for allegedly defamatory remarks made by posters to their sites led Congress to pass the Communications Decency Act (the “CDA”). The CDA shields companies serving as intermediaries for other parties’ potentially injurious speech from tort liability arising from users’ comments. Section 230 of the CDA provides that “[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” Although the CDA is interpreted broadly in light of Congress’ intent in passing the statute, an interactive computer service provider remains liable for its own speech.

To benefit from CDA immunity, (1) the defendant must be a provider or user of an interactive computer service; (2) the plaintiff’s claim must be based on information provided by another information content provider; and (3) the claim must treat the defendant as the publisher or speaker of the allegedly harmful speech. In Small Justice LLC v. Xcentric Ventures LLC, a federal court in Massachusetts found that Ripoff Report should not lose its CDA immunity even if it was found to have copyright ownership of the allegedly defamatory content, and even if, as the plaintiff alleged, it “intentionally caused…two defamatory per se publications to be prominently and frequently featured on Google…and other search engines.”
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Defamation law affords remedies to plaintiffs whose reputations have been tarnished by the false and damaging statements of others. But defamation plaintiffs face a particular dilemma: because legal proceedings are generally open to the public, filing a lawsuit over the libel or slander usually results in further publicity of the very statements the plaintiff wants to suppress. This has become known as the Streisand Effect, and is the same dilemma faced by plaintiffs seeking to enforce contracts containing non-disparagement provisions.

A vivid example is provided by the case of Dr. Steven A. Guttenberg v. Dr. Robert W. Emery, currently pending in District of Columbia federal court. Doctors Guttenberg and Emery were joint shareholders of an oral surgery practice for roughly 20 years, but their relationship soured and litigation ensured in 2008. The doctors settled that case with a settlement agreement containing a non-disparagement provision that restricted each of them from making statements concerning the other that might be harmful to reputation.
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Courts grant temporary injunctions sparingly and only after the moving party has alleged and proved facts entitling it to relief. Injunctive relief generally is not available to prohibit the making of defamatory statements as prior restraints on speech violate the First Amendment to the United States Constitution. Injunctions may sometimes be granted, however, where the defamatory words are made in the furtherance of the commission of another intentional tort. Care must be taken to ensure that any injunction is narrowly tailored to achieve the pin-pointed objective of the needs of the case, as prior restraints on speech are considered the most serious and least tolerable infringement on First Amendment rights.

In Chevaldina v. R.K./FL Management, Inc., a Florida appellate court found that the trial court had abused its discretion in granting an injunction against defamatory speech. Irina Chevaldina was an unhappy former tenant of R.K. Management which owned and managed commercial properties in South Florida. When R.K. discovered that Ms. Chevaldina was the author of anonymous, unflattering blog posts about it, it added several tort claims to its already pending action for defamation per se and libel against the previously anonymous blogger. The tort claims included counts for tortious interference with contractual and advantageous business relationships.
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To be actionable as libel or slander, a statement must not only be false, but must also be defamatory in nature. To have defamatory meaning, a statement must carry a sufficient degree of “sting”; merely offensive or unpleasant statements are not defamatory. See Chapin v. Knight-Ridder, Inc., 993 F.2d 1087, 1092 (4th Cir. 1993) (noting that falsity of statement and defamatory sting must coincide). A communication that is merely unflattering, annoying, irksome, or embarrassing, or that hurts the plaintiff’s feelings, without more, is not actionable in Virginia. See R. Sack, Libel, Slander and Related Problems 45 (1980). So how much of a sting is enough to state a claim?

While the Virginia Supreme Court has not spoken recently on the requisite degree of “sting” required to support a defamation action, federal courts applying Virginia law have held that a statement may be actionable only if it contains a false assertion of fact that “tends so to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him.” See Wolf v. Fed. Nat. Mortg. Ass’n, 830 F. Supp. 2d 153, 168 (W.D. Va. 2011). This is also the position taken by the Virginia Model Jury Instructions and the Restatement (Second) of Torts. See Va. Model Jury Instr. 37.010; Restatement (Second) Torts § 559 (1977). (Update: On June 4, 2015, the Virginia Supreme Court decided Schaecher v. Bouffault, in which it formally adopted the Restatement test that has been followed in the Fourth Circuit for several years.)
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