July 11, 2013 by Tom Roberts, Esq.
You’ve been accused of defamation in Virginia. What’s next?
A general summary of defamation and the steps that should be taken when sued for defamation is as follows:
Take a deep breath, organize your thoughts and consider your defenses and contact a lawyer with skill in this area of the law. Following is useful analysis that your attorney may use.
1) Am I insured? Determine whether or not you have insurance coverage to defend the claim and to pay any liability. Many home-owner policies provide such coverage. Notify your insurance company promptly of the claim in writing to prevent any claim that your failure to do so prejudiced the insurance company and cost you your coverage. Further, even if you are insured, consider hiring personal counsel in addition to the defense provided by the insurance company, particularly if you are sued for an amount in excess of the insurance coverage.
2) Do I have any legal defenses to defamation?
What is Defamation, Libel or Slander?
Defamation is the taking from one’s reputation, the offense of injuring a person’s character, fame, or reputation by false and malicious statements and includes verbal (slander) and written (libel) statements. Defamation is the publication to a third person of a false statement of or concerning another which is harmful or damaging to that person’s reputation.
Did I make the alleged statement to a third person?
In order to be held liable for defamation, you obviously need to have made the statement to a third person who understood the statement as referring to the person suing you. Whether in writing or verbally, this is called “publishing” the statement. It is not enough that the person suing you heard the statement, it must be heard by a third person who understood that the statement was about the person bringing the suit. In Virginia, there is a separate tort for “insulting words” that is similar but does not require publication.
Is the statement true?
Truth is absolutely privileged. Even if you say defamatory statements, if the statements are true, they are not defamation. If you made the statements and they are (arguably) false, did you know they were false? A plaintiff must demonstrate “that the defendant knew that the statement was false or, believing that the statement was true, lacked a reasonable basis for such belief, or acted negligently in failing to determine the facts on which the publication was based.” Hyland v. Raytheon Tech. Servs. Co., 277 Va. 40, 46, 670 S.E.2d 746, 750 (2009).
Is the statement capable of being proved true or false, that is, is it a statement of fact or is it opinion?
Opinions are absolutely privileged. Examine whether the statements qualify as an opinion. Opinions are protected and may not form the basis for an action in defamation.
In the recent case of Tharpe v. Saunders, 285 Va. 476, 481, 737 S.E.2d 890, 893 (2013) (citations omitted), the Virginia Supreme Court provided the following summary:
[P]ure expressions of opinion are constitutionally protected and cannot form the basis of a defamation action. Statements that are relative in nature and depend largely upon the speaker’s viewpoint are expressions of opinion. Furthermore, speech that does not contain a provably false factual connotation is generally considered pure expression of opinion.
Opinions are protected by the First Amendment to the U.S. Constitution, and by Article I, § 12 of the Virginia Constitution. Williams v. Garraghty, 249 Va. 224 (1995). The Court later stated the key question to determining whether a statement constitutes fact or opinion is “whether it is capable of being proved true or false.” Id. at 482, 737 S.E.2d at 893.
Whether a statement may be proven true or false represents a pure question of law which is determined by the court. That means the alleged defamatory statement’s nature as an opinion or fact is settled by the judge, not a jury. In making this determination, the court does not decide whether the statement is actually true or false, but merely whether it may be proven true or false.
A statement of opinion may have statements behind it that are statements of fact and may result in a defamation claim. Furthermore, some statements of opinion may necessarily imply facts and so may result in a defamation claim. For instance, in Lewis v. Kei, 281 Va. 715, 726, 708 S.E.2d 884, 892 (2011), the Court held the statement that “it’s a good day since we got this guy in custody and hopefully everyone can rest a little bit easier” could imply defamatory facts of an assertion of another’s guilt and a propensity to commit criminal conduct. However, the court acting as a “gatekeeper”, must determine whether as a matter of law a statement or article is “reasonably capable” of an implication that is defamatory when it is not apparent on its face before the claim is submitted to the jury. Webb v. Virginian-Pilot Media Companies, LLC, __ Va. ____ (January 10, 2014).
Can I be sued for what I posted on Facebook?
Yes – you can be sued for defamatory statements you publish on Facebook or other social media sites, or that you Tweet, blog or otherwise post on the internet! In fact, due to the potential viral nature of postings on the Internet the damages could be substantial.
Is the statement privileged?
If the above defenses fail, see whether you may claim a privilege against defamation. There are two types of privilege: absolute and qualified. Absolute privilege exists only in narrow classes of cases: legislative statements, judicial proceedings, certain executive functions, certain statements among military officers and statements to spouses. Va. Code § 8.01-226.9 provides merchants with a limited privilege. Defamation in labor disputes apparently have their own liberal protections, where “the most repulsive speech enjoys immunity provided it falls short of a deliberate or reckless untruth.” Linn v. United Plant Guard Workers, 383 U.S. 53, 63 (1966). NLRA 29 U.S.C. § 141, et seq. If you have a privilege defense, you probably have a qualified privilege.
The nature of qualified privilege is broad. The Virginia Supreme Court described it by stating:
It extends to all communications made bona fide upon any subject-matter in which the party communicating has an interest, or in reference to which he has a duty to a person having a corresponding interest or duty; and the privilege embraces cases where the privilege is not a legal one, but where it is of a moral or social character of imperfect obligation.
Isle of Wight County v. Nogiec, 281 Va. 140, 152, 704 S.E.2d 83, 88 (2011). Where qualified privilege applies, the plaintiff must also prove the existence of malice by the person making the defamatory comment. Id. at 140, 704 S.E.2d at 89. Moreover, whereas the normal standard of proof in a civil case is simply a preponderance of the evidence, defeating a claim of qualified privilege requires proof of malice by clear and convincing evidence. Government Micro Res., Inc. v. Jackson, 271 Va. 29, 43, 624 S.E.2d 63, 71 (2006).
Cases within the employment context, which are common, typically receive a qualified privilege. Union of Needletrades, Indus. & Textile Employees v. Jones, 268 Va. 512, 519, 603 S.E.2d 920, 924 (2004).
However, even if a qualified privilege applies, you may lose the privilege. If a privilege applies, you are still liable if you abused the privilege and the plaintiff proves by clear and convincing evidence that:
- you knew the statement was false or made it with reckless disregard of whether it was false or not; or
- the statement was deliberately made in such a way that it was heard by persons having no interest or duty in the subject of the statement; or
- the statement was unnecessarily insulting; or
- the language used was stronger or more violent than was necessary under the circumstances; or
- the statement was made because of hatred, ill will, or a desire to hurt the plaintiff rather than as a fair comment on the subject; or
- the statement was made because of personal spite, or ill will, independent of the occasion on which the communication was made.
Who is the person allegedly defamed and what standard applies?
The law recognizes four classes of plaintiffs: (1) public officials; (2) public figures; (3) limited purpose public figures; and (4) private individuals. A public official must prove that you made the statement with “actual malice” to hold you liable for defamation. This is “New York Times malice, that you made the statement “with knowledge that it was false or with reckless disregard of whether it was false or not. New York Times v. Sullivan, 376 U.S. 254, 279-80 (1964). Similarly, Curtis Pub. Co. v. Butts, 388 U.S. 130 (1967) required public figures to show New York Times malice to prevail. Again, in Rosenbloom v. Metromedia, Inc., 403 U.S. 29 (1971) the Supreme Court again applied the New York Times malice standard for a limited purpose public figure. For Private Individuals in Virginia, the court has specifically declined to extend a more stringent standard than simple negligence. Fleming v. Moore, 221 Va. 884, 891-92 (1981); Gazette, Inc. v. Harris 229 Va. 1, 15 (1985), unless the Private Individual seeks damages for an alleged defamatory statement that does not make substantial danger to reputation apparent—then the Private Individual must prove New York Times malice.
i) Public Officials.
In Rosenblatt v. Baer, 383 U.S. 75, 85 (U.S. 1966), the court stated:
There is, first, a strong interest in debate on public issues, and, second, a strong interest in debate about those persons who are in a position significantly to influence the resolution of those issues. Criticism of government is at the very center of the constitutionally protected area of free discussion. Criticism of those responsible for government operations must be free, lest criticism of government itself be penalized. It is clear, therefore, that the “public official” designation applies at the very least to those among the hierarchy of government employees who have, or appear to the public to have, substantial responsibility for or control over the conduct of governmental affairs.
ii) Public Figures.
In Gertz v. Robert Welch, Inc., 418 US 323, 345 (1974), the court stated:
For the most part those who attain this status have assumed roles of special prominence in the affairs of society. Some occupy positions of such persuasive power and influence that they are deemed public figures for all purposes. More commonly, those classed as public figures have thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved. In either event, they invite attention and comment.
iii) Limited Purpose Public Figures.
A private person who has assumed a role of public prominence in a broad question of concern, or a private person at the forefront of a public issue will be considered a hybrid between a public figure and a private individual. Hutchinson v Proxmire, 443 U.S. 111, 135 (1979), Gertz. v. Robert Welch, Ihnc. 418 U.S. 323 (1974).
iv) Private Individual.
An individual who is not one of the above.
What is the Burden of Proof Required?
The Public Official, the Public Figure and the Limited Purpose Public Figure must prove his case by clear and convincing evidence. The Private Individual need only prove his case by a preponderance of the evidence. However in defamation per se cases by a Private Individual, the burden to prove that the statement was true is on you.
What sort of damages can be recovered against me?
Presumed damages may be awarded against you for defamation per se.
At common law, defamatory words that are actionable per se are:
(1) Those which impute to a person the commission of some criminal offense involving moral turpitude, for which the party, if the charge is true, may be indicted and punished.
(2) Those which impute that a person is infected with some contagious disease, where if the charge is true, it would exclude the party from society.
(3) Those which impute to a person unfitness to perform the duties of an office or employment of profit, or want of integrity in the discharge of the duties of such an office or employment.
(4) Those which prejudice such person in his or her profession or trade.
Fleming v. Moore, 221 Va. 884, 889, 275 S.E.2d 632, 635 (1981);
For all other defamation the plaintiff must prove actual damages which can include out-of-pocket and other pecuniary losses, impairment of reputation and standing in the community, personal humiliation, and mental anguish and suffering. Gertz v. Robert Welch, Inc. 418 U.S. 323, 350 (1974); Sateren v. Mongomery Ward & Co., 234 Va. 303, 305 (1987). The damages should bear a “reasonable relation to the damages sustained.” The Gazette, Inc. v. Harris, 229 Va. 1, 48 (1985). Additionally, punitive damages may be recovered upon a showing of clear and convincing evidence that the defendant acted with New York Times malice. Newspaper Publishing Corp. v. Burk, 216 Va. 800, 805 (1976).
Can I do anything to mitigate the damages?
- The court can consider evidence of reasonable reliance, good faith on your part in such publication, a prior publication elsewhere of similar import, or an apology or retraction made with reasonable promptness and fairness for mitigation of actual, presumed and punitive damages, but not for out-of-pocket actually incurred losses. See Va. Code 8.01-48 applicable to publishers of newspapers, etc. Additionally under Va. Code § 8.01-46, an apology made by you before you are actually sued or as soon after the commencement of the suit as you have the opportunity may be considered by the court in mitigation of the damages. James v. Powell, 154 Va. 96 (1930). § 8.01-46 reads as follow: “Justification and mitigation of damages.In any action for defamation, the defendant may justify by alleging and proving that the words spoken or written were true, and, after notice in writing of his intention to do so, given to the plaintiff at the time of, or for, pleading to such action, may give in evidence, in mitigation of damages, that he made or offered an apology to the plaintiff for such defamation before the commencement of the action, or as soon afterwards as he had an opportunity of doing so in case the action shall have been commenced before there was an opportunity of making or offering such apology.”
In summary, there are many possible legal defenses to a defamation claim. Defamation is a complex area of the law. Obviously, not all the possible defenses are set out here. You may be able to defeat a defamation claim. This firm handles both plaintiff and defense cases in defamation, libel and slander. Contact this firm for a consultation.
The materials are prepared for information purposes only. The materials are not legal advice. You should not act upon the information without seeking the advice of an attorney. Nothing herein creates an attorney-client relationship.
Thomas H. Roberts, Esq.
Andrew T. Bodoh, Esq.
Thomas H. Roberts & Associates, P.C.
105 S 1st Street
Richmond, Virginia 23219
(804) 783-2000 x 110
(804) 783-2105 fax
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