PRIVILEGES AND DEFENSES TO DEFAMATION

Our team of Virginia Defamation Lawyers at Fox and Moghul can walk you through several potential defenses that may apply in your case under Virginia Defamation Law, including substantial truth, the fair report privilege, consent, and absolute an qualified privileges.

TRUTH OR SUBSTANTIAL TRUTH AS A DEFENSE TO DEFAMATION

A. Truth or Substantial Truth

“Falsity is the “sine qua non of a libel claim” (Brian v. Richardson, 87 N.Y.2d 46, 51 (1995))

Truth, or substantial truth, is a complete defense to a claim of defamation in Virginia. This is what a Virginia Defamation lawyer fears the most – what if the accusations against his clients are true? The fact that the statement may have been made out of malice or bad faith is immaterial for purposes of liability under defamation law.

Case law from Virginia, and some other jurisdictions, establishes the standard for what constitutes “substantial truth” of an allegedly defamatory statement.

• Crane v. New York World Tel. Corp., 308 N.Y. 470, 477 (1955) (statement that plaintiff “under indictment” held to be false as a matter of law where plaintiff had been accused but never indicted).
• Brown v. Shupe, 629 F.Supp. 760 (E.D. Va., 1985): Allegations that plaintiff was dishonest held to be substantially true because plaintiff was convicted in federal court with respect to the claims made by defendant.
• Dibble v. WROC TV Channel 8, 530 N.Y.S.2d 388, 142 A.D.2d 966 (N.Y.A.D. 4 Dept., 1988) (Statements were NOT substantially true when the defendant publicized that plaintiff was “indicted on charges of fraud, embezzlement and securities violations” and “accused of misuse of clients’ escrow accounts and stock fraud,” but the plaintiff was only charged with one count of grand larceny in the second degree)
• Fraser v Park Newspapers, 684 NYS 2d 332 (1999) (“even if it could be demonstrated that plaintiff did engage in lewd conduct, or that others had accused him of doing so, that would not tend to prove the truth of the charged libel, namely, that he had pleaded guilty to a crime”).
• Saleeby v. Free Press, Inc., 91 S.E.2d 405, 407, 197 Va. 761 (Va., 1956): “Slight inaccuracies of expression are immaterial provided the defamatory charge is true in substance, and it is sufficient to show that the imputation is ‘substantially’ true”.

B. Absolute Privilege Under Virginia Defamation Law.

If a defamatory statement is privileged, it may pose a successful defense to a defamation claim under Virginia Defamation Law. Privileges are situations where the law has recognized justifiable reasons for publishing defamatory statements to others. According to well-settled Virginia Defamation Law, “words spoken or written in a judicial or quasi-judicial proceeding are absolutely privileged when relevant to the subject matter of the proceeding” (see Katz v. Odin, Feldman & Pittleman, P.C., 332 F.Supp.2d 909 (E.D. Va., 2004) (emphasis added). A communication deemed absolutely privileged is accorded complete immunity from liability, even if the communication was published maliciously and with knowledge of its falsity (see Spencer v. Looney, 116 Va. 767, 774, 82 S.E. 745, 747 (1914)). Virginia Defamation Lawyer Cautionary Note: the privilege is broader than the language appears to suggest.

As the Virginia Supreme Court observed in Penick v. Ratcliffe, 149 Va. 618, 627-28, 140 S.E. 664 (1927): The rule is broad and comprehensive, including within its scope all proceedings of a judicial nature whether pending in some court of justice, or before a tribunal or officer clothed with judicial or quasi- judicial powers. It applies to communications made before tribunals having attributes similar to those of courts.

WHAT DOES THE RESTATEMENT OF TORTS SAY ABOUT PRIVILEGE?

The Restatement (Second) of Torts § 586 provides:
An attorney at law is absolutely privileged to publish defamatory matter concerning another in communications preliminary to a proposed judicial proceeding, or in the institution of, or during the course and as a part of, a judicial proceeding in which he participates as counsel, if it has some relation to the proceeding.

Restatement § 587 likewise states:
A party to a private litigation or a private prosecutor or defendant in a criminal prosecution is absolutely privileged to publish defamatory matter concerning another in communications preliminary to a proposed judicial proceeding, or in the institution of or during the course and as a part of, a judicial proceeding in which he participates, if the matter has some relation to the proceeding.

Virginia Case Law Examples – What Is Covered By the Absolute Privilege?

Our Virginia Defamation Lawyer often gets client queries concerning the exact scope of the Absolute Privilege under Virginia Defamation Law. Here is what a resident of Virginia needs to know:

• • Fee arbitrations fall within the broad scope of the absolute privilege (See Katz v. Odin, Feldman & Pittleman, P.C., 332 F.Supp.2d 909 (E.D. Va., 2004).
• • Insurance arbitration fall within the broad scope of the absolute privilege (See Shabazz v. PYA Monarch, LLC, 271 F.Supp.2d 797, 803 (E.D.Va.2003).
• • EEOC proceedings fall within the scope of this privilege (see Corbin v. Washington Fire & Marine Ins. Co., 278 F.Supp. 393 (D.S.C.1968), aff’d, 398 F.2d 543 (4th Cir.1968);
• • Allegations in a complaint (Kelley v. Bonney, 221 Conn. 549, 573, 606 A.2d 693 (1992)).
• • Lawyer questioning potential witness before trial (Kelley v. Bonney, 221 Conn. 549, 573, 606 A.2d 693 (1992)).

The Litigation Privilege: When Does It Shield Pre-Litigation Defamatory Statements in Virginia?
The Penick 3 Factor Analysis of Communication BEFORE The Start of A Judicial or Other Similar Proceeding.

For absolute privilege to attach, the preliminary communication must be “material, relevant or pertinent” to the judicial process (Penick v. Ratcliffe, 149 Va. 618, 635, 140 S.E. 664, 669 (1927). The Penick Court elucidated three factors to examine the applicability of the absolute privilege under Virginia Defamation Law, namely:

• • The statement was made preliminary to a proposed proceeding;
  • The statement was related to a proceeding contemplated in good faith and under serious consideration, and
  • The communication was disclosed to interested persons.

Interested Persons Requirement Under VA Defamation Law

Under Virginia Defamation Law, pre-litigation settlement communications are absolutely privileged from defamation claims, as long as the communication is made only to “interested persons” (Mansfield v. Bernabei, 727 S.E.2d 69, 75 (Va. 2012) (adopting Restatement (Second) of Torts §§ 586, 587).

The comments to these sections are furthermore instructive, emphasizing the limitation of the protections afforded to pre-litigation communications:

As to communications preliminary to a proposed judicial proceeding the rule stated in this Section applies only when the communication has some relation to a proceeding that is contemplated in good faith and under serious consideration. The bare possibility that the proceeding might be instituted is not to be used as a cloak to provide immunity for defamation when the possibility is not seriously considered (Restatement (Second) of Torts §§ 586 cmt. e, 587 cmt. E).

The Mere Potential Litigation Rule Under VA Defamation Law

Defamatory statements made by a physician to a patient, Lindeman, about another doctor, Lesnick, in regard to treatment Lindeman received pursuant to a workers’ compensation award were held NOT to be absolutely privileged because an ongoing award for workers’ compensation medical benefits did not constitute a pending proceeding and that no claim was pending before the Workers’ Compensation Commission. The court held that the privilege does not extend to “mere potential litigation” to avoid “permitting defamatory communications to be made with impunity merely upon an assertion that litigation might be subsequently initiated” (Lindeman v. Lesnick, 268 Va. 532, 538, 604 S.E.2d 55, 58-59 (2004).

C. Qualified Privilege Under VA Defamation Law

A Communication, made in good faith, on a subject matter in which the person communicating has an interest, or owes a duty, legal, moral, or social, is qualifiedly privileged if made to a person having a corresponding interest or duty (Great Coastal Express v. Ellington, 230 Va. 142, 153, 334 S.E.2d 846, 853 (1985)).

Under Virginia Defamation law, qualified privilege allows the publisher to make a statement that would otherwise be defamatory without being held liable for making the statement. In other words, it’s a defense. The catch is that the statement must be made to an interested person without malice – or the speaker of the defamatory statement loses this qualified privilege.

Overcoming the Qualified Privilege
Some Factors to Consider Under VA Defamation Law

Our Virginia Defamation lawyer is well-versed with the law surrounding qualified privileges. So what is the maker of the qualified privilege abuses such a privilege – what does YOUR Virginia Defamation Lawyer need to do to overcome such qualified privilege? According to Cashion v. Smith, 286 Va. 327, 338 (2013), here are some factors that to consider in overcoming the privilege

1. The statements were made with knowledge that they were false or reckless disregard for their truth;
2. The statements were communicated to third parties who have no duty or interest in the subject matter;
3. The statements were motivated by personal spite or ill will;
4. The statements included strong or violent language disproportionate to the occasion; or
5. The Statements were not made in good faith.

D. FAIR REPORT PRIVILEGE – DEFAMATION AND THE PRESS

Under Virginia Defamation law, “the publication of public records to which everyone has a right of access is privileged, if the publication is a fair and substantially correct statement of the transcript of the record” (see Alexandria Gazette Corp. v. West, 93 S.E.2d 274, 279 (Va. 1956)). Notice how the “substantial truth” standard applies to this privilege as well.

The scope of the fair report privilege under Virginia law remains unclear, however, because the defamation case above involved court proceedings, not other government records. Nevertheless, one can extrapolate from exiting law, that the scope of this privilege arguably covers reports based on government records that are open to the public, such as marriage and divorce records, birth and death records and property records.

Here is some Virginia Defamation Case Law elaborating on the scope of the privilege:

• Chapin v. Knight-Ridder, Inc., 993 F.2d 1087, 1097 (4th Cir. 1993) (fair report privilege applies to “governmental actions” like the unofficial public remarks of a member of Congress)
• Reuber v. Food Chemical News, Inc., 925 F. 2d 703 925 F.2d 703 (4th Cir. 1991) (privilege applicable to an official letter of reprimand leaked to the press)

E. STATUTORY PRIVILEGES UNDER VIRGINIA LAW

1. Virginia Code § 8.01-46.1(A) – this statute provides immunity to employers who, acting in good faith, provide information about a former employee’s professional standing to a prospective employer or current employer upon request. Note that good faith and lack of malice are important in determining whether the privilege is overcome (see Sarno v. Clanton, 59 Va. Cir. 384 (Norfolk 2002)
2. Virginia Code § 8.01- 49 – “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.”
3. Virginia Code § 17.1-914 – “The filing of papers with and the giving of testimony before the Commission shall be privileged, except where such filing of papers or giving of testimony is motivated or accompanied by actual malice. No other publication of such papers or proceedings shall be privileged in any action for defamation except that (i) the record filed by the Commission with the Supreme Court, in support of a formal complaint filed therewith, continues to be privileged and (ii) a writing which was privileged before its filing with the Commission shall not lose such privilege by such filing.”
4. Virginia Code § 38.2-618 – “No cause of action in the nature of defamation, invasion of privacy, or negligence shall arise against any person for disclosing personal or privileged information in accordance with this chapter, nor shall such a cause of action arise against any person for furnishing personal or privileged information to an insurance institution, agent, or insurance-support organization. However, this section shall provide no immunity for disclosing or furnishing false information with malice or willful intent to injure any person.”
5. Virginia Code § 54.1-3908 – “No person shall be held liable in any civil action for words written or spoken in any complaint regarding, proceeding concerning, or investigation of, the professional conduct of any member of the Virginia State Bar, unless it is shown that such statements were false and were made willfully and maliciously.”

Contact us at Fox and Moghul to discuss your case today. Related post: https://live-moghul.pantheonsite.io/blog/2020/08/what-is-defamation-in-virginia-an-overview-of-the-basics/

Share on Facebook

Tweet

Follow us