What Is Defamation In Virginia? Key Issues You Should Know

WHAT IS DEFAMATION?

“In Virginia, as in other states, the law of defamation historically has protected a basic interest. The individual’s right to personal security includes his uninterrupted entitlement to enjoyment of his reputation” Gazette Inc. v. Harris, 229 Va. 1 (1985). Our litigation team at Fox and Moghul focus on the complex area of defamation law, whether spoken, written, broadcast, or disseminated in any other form.

Simply put, a defamatory statement is a false statement that exposes the defamed person to public hatred, contempt, ridicule, humiliation, embarassment or disgrace – in essence, a statement that is capable of being understood as harming the reputation of that person in society.

In other words, a defamatory statement lowers the estimation of a person’s character or worth in his or her community. “Society has a pervasive and strong interest in preventing and redressing attacks upon reputation.” Rosenblatt v. Baer, 383 U.S. 75, 86 (1966).

ELEMENTS YOU MUST PROVE TO WIN YOUR DEFAMATION CASE:

Fox and Moghul can walk you through the complexities of proving each element for your case. Generally speaking, the elements of defamation are: (1) publication of (2) an actionable statement with (3) the requisite intent. Remember, there are different standards for a defamation action under Virginia Defamation Law. There may be additional elements to prove under Virginia Defamation Law for your case. Our Virginia Defamation Lawyer will explain this to you.

For example, in a defamation per se case (explained below), and if You are a public figure, you will have to prove the additional elements of (1) falsity of the defamatory statement, and (2) fault of the defendant – made by the defendant knowing it to be false or, believing it to be true, lacking reasonable grounds for that belief, or acting negligently in failing to determine the facts on which the statement was based. Contact our Virginia Defamation Lawyer if this is not clear – we will gladly explain this nuance.

• Defamation and the Media. Fox & Moghul handles claims on behalf of individuals who have been the victims of libel and/or slander. Oftentimes, the media publishes untrue and defamatory statements about members of the public which cause irreparable damage. The law of the First Amendment is complicated and media defendants have powerful defenses. Some states like New York, for example, have pre-suit notice requirements and require a prospective plaintiff to allow a media defendant to issue a retraction prior to filing suit. As a result of this minefield of both federal and state laws, it is important to hire a Fox & Moghul who is knowledgeable and experienced in the area of the First Amendment and Defamation Law.
• Internet Defamation on Social Media Sites. Defamation law exemplifies the fundamental tension between freedom of expression on one hand, and the responsibility to speak truthfully about other people. In our technological era, one of the biggest mediums to publish libel is through the internet and social media. Fox & Moghul handles social media defamation cases just as any other defamation claim, but it may be important to take an extra step to preserve evidence. If you believe someone is publishing online defamatory statements about you, it may be in your best interest to take and save a “screenshot” of this libel action. Consult with Fox & Moghul for guidance in the next steps of taking recourse for the statement that caused harm to you.
• Defamation and False Arrest. Many defamation cases are associated with claims of false arrest. When a person is accused of a crime, arrested and imprisoned, even if for only a short amount of time, that person could suffer serious damage to their reputation and their career because of the false allegations. We have the experience necessary to stand up for people falsely accused of criminal conduct.

Statute of Limitations for Defamation – 1 Year:

You have one year to sue for defamation starting from the date of publication of the defamatory statement. A republication of the defamatory statement starts the limitations period running again. In Virginia, if the Statute of Limitations Has Passed on a Defamatory Publication, are All Similar Publications Time-Barred? The general rule states any repetition of libel or slander is a separate defamatory publication and generates a new cause of action.

WHAT IS PER SEDEFAMATION ?

Virginia law recognizes that there are certain statements that are so obviously damaging to your reputation that you do not need to prove any damages in court – damages are presumed. Virginia defamation law recognizes the following categories of statements to be defamatory per se:

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.

• • EXAMPLE: Miley falsely accuses Joe of theft at an office event in front of Joe’s coworkers. The damage to Joe’s reputation here is obvious. He was accused of a crime – theft – for which he may be indicted and be punished with prison time.

2. Those which impute that a person is infected with some contagious disease, which if true, would subject the person to exclusion from society.

• • EXAMPLE: Joe tells his friends that he has heard “rumors” that Miley has aids. The natural result of this statement would cause people to shun Miley.]

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.

• • EXAMPLE: Bill is the treasurer of a local nonprofit. Joe tells his friends that Bill has a history of embezzling monies from his previous employer. Assuming the statement is false, and that Joe does not have any reasonable basis to make such a statement, it is defamatory on its face. Such a statement will obviously lead others to believe that Bill is not fit to be the treasurer over the finances of a local nonprofit.

4. Those which prejudice such person in his or her profession or trade.

• • EXAMPLE: Dr. Lake is a physician who is attacked as a “quack” by a local organization in the community. Naturally, the result of this statement would cause others not to consult this physician].
  • EXAMPLE: Marvel tells his friends that Dr. Singh “abandoned” his patients and that there were “concerns about his competence.” These statements were held to be defamatory per se (see Fuste v Riverside Healthcare Ass’n, 265 Va. 127 (2003).

VIRGINIA INSULTING WORDS STATUTE (Va. Code § 8.01- 45)

Va. Code § 8.01 – 45 states: “All words shall be actionable which from their usual construction and common acceptance are construed as insults and tend to violence and breach of the peace.”

Under First Amendment doctrine, the state cannot pass laws that “forbid or proscribe advocacy of the use of force” or make it illegal to advocate breaking the law, except where the speech is “directed to inciting imminent lawless action and is likely to incite or produce such action” (Brandenberg v. Ohio, 395 U.S. 444, 447 (1969). This is called the “fighting words” doctrine – “those personally abusive epithets which, when addressed to the ordinary citizen, are, as a matter of common knowledge, inherently likely to provoke violent reaction.” see Cohen v. California, 403 U. S. 15, 20 (1971), Virginia Defamation Law has a similar statute called the Insulting Words Statute, which prohibits the use of words against others that are so offensive and insulting so as to cause the average person to likely react with violence. Some significant points to note when pursing an action under Virginia’s Insulting Words Statute:

1. Proof of Publication is NOT required. When pursing a cause of action under Virginia’s Insulting Words Statute, proof of publication is not required (Carwile v. Richmond Newspapers, 196 Va. 1, 82 S.E.2d 588 (1954)).
2. The words used must not only be insulting, but also “tend to violence and breach of the peace.”

CASE LAW EXAMPLES

• Employer fires an employee and gives him an unfavorable review, stating that his skills were unsatisfactory and he was fired for performance. These words are NOT insulting words because they do not “tend to violence and breach of the peace” (Allen & Rocks, Inc. v. Dowell, 252 Va. 439, 477 S.E.2d 741 (1996)).
•  Two girls were detained by a security officer who accused them of shoplifting. Held, “The words uttered by defendant’s security officer, while he was engaged in the ordinary course of his employment and in connection therewith, carried an imputation that the two young girls had stolen merchandise from the store, and that he was accusing them of theft. Hence the evidence was sufficient to support the jury’s finding that the girls had been falsely accused of larceny and that the words used by the security officer, from their usual construction and common acceptation, were insulting and tended to violence and breach of the peace.” Zayre, Inc. v. Gowdy, 207 Va. 47, 147 S.E.2d 710 (1966).

INDUCEMENT AND INNUENDO — COMPARE AND CONTRAST EXAMPLE:

A newspaper publishes an article in which it states that Betty, a prominent member of her community, gave birth to a daughter. On its face, the statement does not appear to be defamatory. However, when that statement is combined with facts that people in Betty’s community are aware of, namely that Betty is not married, then that creates a defamatory meaning. Since the statement is not defamatory on its face, you will have to plead additional facts – Betty is not married – as “inducement” to establish a defamatory meaning by “innuendo.”

WHAT IS NOT DEFAMATORY

A. OFFENSIVE STATEMENTS. Statements that are merely offensive are not defamatory (e.g., a statement that Nancy smells would not be sufficient to constitute defamation.

B. PURE OPINIONS. Statements of pure opinion, which cannot be proven true or false, cannot form the basis of a defamation claim. For example, a statement that Joe is a jerk is clearly a statement of opinion).

In Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974), the U.S. Supreme Court ruled that a plaintiff could not win a libel suit when the statement(s) in question were of opinion rather than fact. In the words of the court, “under the First Amendment, there is no such thing as a false idea”. For example, compare the following statements

• I think Jose is a bad lawyer – this is opinion
• Jose does not known the law – this is defamatory per se

C. MIXED OPINIONS. On the other hand, mixed opinion CAN be defamatory. According to the Virginia Supreme Court, “expressions of opinion may often imply an assertion of objective fact” and “simply couching…statements in terms of opinion does not dispel these implications.”

Example:

• Justin Bieber stole a Ferrari from the car dealership in LA last week.
• In my opinion, Justin Bieber stole a Ferrari from the car dealership in LA last week.
• Assuming the statements are false, there is no legal difference between such statements and BOTH are defamatory.

2. OF OR CONCERNING PLAINTIFF – THE DEFAMATORY STATEMENT MUST BE ABOUT YOU?

A reasonable reader, listener of viewer must understand that the defamatory statement referred to you – the defamed party. Otherwise, a statement cannot be defamatory under Virginia Defamation Law. The defamatory statement need not identify you by name, but there must be sufficient information in the statement for others to reasonably understand that it refers to you.

PLEADING COLLOQUIUM. A local newspaper in Fairfax publishes an article stating that “a local technology company executive, who is embroiled in a bitter divorce dispute with his supermodel ex-wife, was seen snorting lines of cocaine with underage girls at a local club.” This will likely be actionable – assuming it is false – because the technology company executive could be identified from the references to a bitter divorce dispute and his supermodel ex-wife. Your will have to present EXTRINSIC EVIDENCE during trial to establish that the article is referring to YOU – the technology executive. This is known as pleading “colloquium.”

3. PUBLICATION
A publisher of a defamatory statement is liable to the same extent as the person who made the defamatory statement. Under Virginia Defamation Law, defamation means communication of the defamatory statement to someone other than YOU. In the context of newspapers and other media channels, most states have adopted the single publication rule, which means that all copies of the printed defamatory statement as treated as one publication.

• Food Lion, Inc. v. Melton, 250 Va. 144, 458 S.E.2d 580 (1995) (Plaintiff alleged that she was accused of shoplifting by security guard. Her testimony established that a number of customers stopped to listen to the security guard’s accusations. This was sufficient to establish publication. Publication may be proved by either direct or circumstantial evidence that remarks were heard by a third party who understood remarks as referring to plaintiff).
• Watt v. McKelvie, 219 Va. 645, 248 S.E.2d 826 (1978) (Defendant republished defamatory statement during deposition. Defendant was absolutely privileged in the publication of the defamatory statement. No new cause of action arose as to originator of statement).
• Weaver v. Beneficial Fin. Co., 199 Va. 196, 98 S.E.2d 687 (1957) (Author of defamation is liable for republication by third persons if it is natural and probable consequence of his act; or, he has presumptively or actually authorized its republication. This republication constitutes new cause of action against original publisher).
• Cohen v. Power, 183 Va. 258, 32 S.E.2d 64 (1944) (Although there is no testimony from person who supposedly heard slanderous remarks, testimony from plaintiff that these slanderous comments were communicated to these persons is sufficient).

6. ACTUAL MALICE –INTENT UNDER VIRGINIA DEFAMATION LAW
In 1964, the US Supreme Court issued a landmark opinion in New York Times Co. v. Sullivan, dramatically changing the nature of libel law in the United States. In that case, the court determined that “public officials” could only win a suit for libel if they could demonstrate “actual malice” on the part of reporters or publishers. In that case, “actual malice” was defined as “knowledge that the information was false” or that it was published “with reckless disregard of whether it was false or not.” This decision was later extended to cover “public figures,” although the standard is still considerably lower in the case of private individuals.

7. DAMAGES.

1. Presumed Damages Under Virginia Defamation Law, presumed damages that require no proof of actual injury to be awarded. Generally, presumed damages are awarded for defamation per se since the law believes that such statements will almost always lead to actual injury. Note that if the statement is defamatory per se but addresses a matter of public concern, presumed damages may  only be recovered by a showing of New York Times malice (Shenandoah Publishing House, Inc. v. Gunter, 245 Va. 320, 325, 427 S.E.2d 370, 372 (1993).
2. Actual or Compensatory Damages – These damages include but are not limited to out-of-pocket expenses and other financial loss suffered as a result of the defamatory statement, impairment to reputation and standing in the community, mental anguish and suffering.
3. Punitive Damages – Upon a showing that a person acted with New York Times malice by clear and convincing evidence, a public or private figure can recover punitive damages.
4. Mitigation of Damages under Virginia Defamation Law
   • Va Code Ann. § 8.01-48 – under this code section, evidence of reasonable good faith reliance by the defendant in publication, a prior publication of similar purport, or an apology or retraction with reasonable promptness and fairness may be considered in mitigation of actual, presumed and punitive damages, but may not be considered in mitigation of any out-of-pocket losses actually incurred by the Plaintiff.
   • Va Code Ann. § 8.01-46 – allows the defendant to make an apology to the Plaintiff concerning the defamatory statement to be introduced in mitigation of the Plaintiff’s damages in a defamation action.

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