January 28, 2014 by Tom Roberts, Esq.
- Slander, defamation and libel are all treated the same in Virginia.
- Defamation is a false statement of fact published or communicated to another person that causes injury to the reputation of the subject of the statement.
- The false statement must be a false statement of fact, and not mere opinions.
- Truth is an absolute defense to a defamation law suit.
- Some defendants will escape liability if they spoke made the statement to a person who had a reason to hear the statement and the defendant did not know the statement was false when it was said – this defense is known as a “qualified privilege.”
- In Virginia you must plead the exact words used.
- “Defamation per se” — When the defamatory statement involves defamatory words that (1) impute commission of a criminal offense involving moral turpitude, (2) impute infection with some contagious disease, (3) impute unfitness to perform the duties of an office or employment, or want of integrity in the discharge of such duties, or (4) prejudice a person in his profession or trade, you do not have to prove damages as they are presumed, otherwise you must prove how the statement damaged you.
You’ve been slandered, defamed or libeled in Virginia. What’s next?
A general summary of defamation and the steps that should be taken if you have been slandered or defamed is as follows:
Take a deep breath, organize your thoughts and consider your options and contact a lawyer with skill in this area of the law. Following is useful analysis that your attorney may use.
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.
Was the defamatory statement made or "published" to a third person?
In order to be held liable for defamation, the defendant must made the statement to a third person who understood the statement as referring to you. Whether in writing or verbally, this is called “publishing” the statement. It is not enough that you heard the statement, it must be heard by a third person who understood that the statement was about you. 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.
Truth is absolutely privileged.
Even if somebody says horrible things about you that injure your reputation, if the statements are true, they are not defamation. If the defendant made the statements and they are (arguably) false, did they 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.
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. “Expressions of opinion are not actionable as defamation” Sroufe v Waldron, __ VA __, (June 27, 2019). 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.” Tharpe v. Saunders, 285 Va. 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. Sroufe v Waldron, __ VA __, (June 27, 2019) quoting Webb v. Virginian-Pilot Media Companies, LLC, 287 Va. 84, 90 (2014).(“Ensuring that defamation suits proceed only upon statements which actually may defame a plaintiff, rather than those which merely may inflame a jury to an award of damages, is an essential gatekeeping function of the court”)
In determining whether a statement is an expression of opinion, the Court considers the statement as a whole. Sroufe v Waldron, __ VA __, (June 27, 2019) citing Hyland v Raytheon Tech. Servs. Co., 277 Va. 40, 47 (2009). “When a statement is relative in nature and depends largely on a speaker’s viewpoint, that statement is an expression of opinion.” Id.
Does the statement have the necessary "sting" to be actionable as defamation?
Not every false statement published about a person rises to the level of “defamation.” The statement must have the “sting” of a reprehensible crime, or have inflammatory language or context so that the statement causes particular harm to one’s reputation, as to lower him in the estimation of the community or to deter third persons from associating or dealing with him, making the plaintiff appear odious, infamous, or ridiculous, or subjecting him to contempt, scorn, shame, or disgrace. Schaecher v. Bouffault, 290 Va. 83, 95, 772 S.E.2d 589, 595-96 (2015) citing Restatement (Second) of Torts § 559.
Was the defamatory statement or a republication of the statement made within the Virginia 1-year statute of limitations?
In Virginia, the statute of limitations is 1-year for defamation. Code of Virginia§ 8.01-247.1 states “Every action for injury resulting from libel, slander, insulting words or defamation shall be brought within one year after the cause of action accrues.” In Weaver v. Beneficial Finance Co., 199 Va. 196, 98 S.E.2d 687 (1957), the Supreme Court of Virginia addressed the effect of a republication of a defamatory statement in the context of a trial court’s dismissal of a defamation action on statute of limitation grounds. In Weaver, the statute had clearly run on a claim arising from the original publication but had not on a claim based upon the subsequent republication of the alleged defamatory statement. In reversing the trial court, the Supreme Court held as follows:
“It is settled that the author or originator of a defamation is liable for a republication or repetition thereof by third persons, provided it is the natural and probable consequence of his act, or he has presumptively or actually authorized or directed its republication. This is based upon the principle that such republication constitutes a new cause of action against the original author.”
Id. at 199 (emphasis supplied); see also Watt v. McKelvie, 219 Va. 645, 649, 248 S.E.2d 826 (1978).
A creative and skilled attorney may be able to find a remedy even it appears that the 1-year statute of limitations in Virginia has run, using other claims, or by close analysis of the law and facts, therefore you should consult with such an attorney.
Is it worth pursuing?
Litigation can be both expensive and an investment in time and emotions. Sometimes, simply having a jury entering a judgment for you which confirms the statements made were false can be helpful in repairing your reputation. If you desire to be compensated for the damage to your reputation, then it is important to ask whether the defendant is judgment proof — is there anything to collect. It is important that if the defendant has an insurance policy that provides coverage, that the insurance company be notified of the claim to prevent it from denying coverage based upon the insured’s failure to give them notice of the claim. Your skilled and knowledgeable attorney should promptly take these steps.
Can I sue somebody for what they posted on Facebook, Twitter, Instagram, Linked-In or other social media formats?
Yes – you can sue for defamatory statements publish on Facebook or other social media sites, or Tweets, blogs or that were otherwise posted on the internet! In fact, due to the potential viral nature of postings on the Internet the damages could be substantial.
Are there any legal defenses to defamation?
If the statements do not meet the definition set out above a claim may also be rejected if the statement is privileged and the privilege is not abused. 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 the defendant has a privilege defense, the defendant probably has 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, the defendant may lose the privilege. If a privilege applies, the defendant is still liable if defendant abused the privilege and the plaintiff proves by clear and convincing evidence that:
- defendant 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 the defendant made the statement with “actual malice” to hold the defendant liable for defamation. This is “New York Times malice, that the defendant 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, Inc. 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. . In Gazette v. Harris, 229 Va. 1, 15, 325 S.E.2d 713, 724-5 (1985) the Court held that where a private individual sues another private individual alleging defamation and seeking compensatory damages, such plaintiff may recover upon proof by a preponderance of the evidence that the publication was false, and that the defendant either knew it to be false, or believing it to be true, lacked reasonable grounds for such belief, or acted negligently in failing to ascertain the facts on which the publication was based. Under this standard, truth no longer is an affirmative defense to be established by the defendant. Instead, the plaintiff must prove falsity, because he is required to establish negligence with respect to such falsity. However, the application of this standard is expressly limited to circumstances where the defamatory statement makes substantial danger to reputation apparent. If no substantial danger is apparent from the statement, New York Times malice must be established to recover compensatory damages. See Jarrett v. Goldman, 67 Va. Cir. 361, 370 n.6 (Cir. Ct. 2005) In every defamation action the plaintiff’s initial burden is to produce sufficient evidence to show that the allegedly defamatory statement was false. If the plaintiff does not establish the falsity of the statement by a preponderance of the evidence in his case-in-chief, he has not met this threshold burden, and the trial court should strike the evidence and grant summary judgment to the defendant. Union of Needletrades, Indus. & Textile Emples. v. Jones, 268 Va. 512, 520, 603 S.E.2d 920, 924-25 (2004)
What sort of damages can be recovered against the defendant?
Presumed damages may be awarded against the defendant 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 the defendant 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 the defendant before the defendant is actually sued or as soon after the commencement of the suit as the defendant has 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.”
§ 8.01-223.2. Immunity of persons for statements made at public hearing or communicated to third party
A. A person shall be immune from civil liability for a violation of § 18.2-499, a claim of tortious interference with an existing contract or a business or contractual expectancy, or a claim of defamation based solely on statements (i) regarding matters of public concern that would be protected under the First Amendment to the United States Constitution made by that person that are communicated to a third party or (ii) made at a public hearing before the governing body of any locality or other political subdivision, or the boards, commissions, agencies and authorities thereof, and other governing bodies of any local governmental entity concerning matters properly before such body. The immunity provided by this section shall not apply to any statements made with actual or constructive knowledge that they are false or with reckless disregard for whether they are false.
B. Any person who has a suit against him dismissed or a witness subpoena or subpoena duces tecum quashed pursuant to the immunity provided by this section may be awarded reasonable attorney fees and costs.
Every action for injury resulting from libel, slander, insulting words, or defamation shall be brought within one year after the cause of action accrues.
If a publisher of statements actionable under this section publishes anonymously or under a false identity on the Internet, an action may be filed under this section and the statute of limitations shall be tolled until the identity of the publisher is discovered or, by the exercise of due diligence, reasonably should have been discovered.
§ 8.01-46. 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.
A. No provider or user of an interactive computer service on the Internet shall be treated as the publisher or speaker of any information provided to it by another information content provider. No provider or user of an interactive computer service shall be liable for (i) any action voluntarily taken by it in good faith to restrict access to, or availability of, material that the provider or user considers to be obscene, lewd, lascivious, excessively violent, harassing, or intended to incite hatred on the basis of race, religious conviction, gender, disability, gender identity, sexual orientation, color, or national origin, whether or not such material is constitutionally protected, or (ii) any action taken to enable, or make available to information content providers or others, the technical means to restrict access to information provided by another information content provider.
B. As used in this section:
“Disability” means a physical or mental impairment that substantially limits one or more of a person’s major life activities.
“Information content provider” means any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service.
“Interactive computer service” means any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the Internet and such systems operated or services offered by libraries or educational institutions.
“Internet” means the international computer network of interoperable packet-switched data networks.
§ 8.01-49. Defamatory statements in radio and television broadcasts
The owner, licensee or operator of a radio and television broadcasting station or network of stations, and the agents or employees of any such owner, licensee or operator, shall not be liable for any damages for any defamatory statement published or uttered in or as a part of any such broadcast, by one other than such owner, licensee or operator, or agent or employee thereof, unless it shall be alleged and proved by the complaining party, that such owner, licensee, operator, such agent or employee, failed to exercise due care to prevent the publication or utterance of such statement in such broadcast; provided, however, that in no event shall any owner, licensee or operator, or the agents or employees of any such owner, licensee or operator of such a station or network of stations be held liable for damages for any defamatory statement broadcast over the facilities of such station or network by or on behalf of any candidate for public office.
No person shall make, publish, disseminate, or circulate, directly or indirectly, or aid, abet or encourage the making, publishing, disseminating or circulating of any oral or written statement or any pamphlet, circular, article or literature that is false, and maliciously critical of, or derogatory to, any person with respect to the business of insurance or with respect to any person in the conduct of his insurance business and that is calculated to injure that person.
No person shall willfully and knowingly make, issue, circulate, or transmit, or cause or knowingly permit to be made, issued, circulated, or transmitted, any statement or rumor, written, printed, reproduced in any manner, or by word of mouth, that is untrue in fact and is (i) malicious, in that it is calculated to injure reputation or business, and (ii) derogatory to the financial condition or standing of any savings institution or Federal Home Loan Bank. Any person who violates this section is guilty of a Class 2 misdemeanor.
In summary, there are many possible legal basis and 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 obtain a recover in 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 105
(804) 783-2105 fax
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