Defenses to Defamation in Virginia: Exploring Privileges and Legal Protections

 Posted on April 29, 2025 in Business

At Fox & Moghul, our Virginia defamation attorneys are highly skilled in navigating the complex landscape of defamation defenses. If you have been accused of defamation or are considering legal action, it is crucial to understand the available defenses under Virginia defamation law. This guide explores key legal privileges, truth as a defense, and statutory protections that may apply in defamation cases.

1. Truth or Substantial Truth as a Defense to Defamation

A. The Legal Standard: Truth as a Complete Defense

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

Under Virginia defamation law, truth or substantial truth is an absolute defense to a defamation claim. Even if a statement damages a person’s reputation, if it is true, there is no defamation.

The motive behind a statement is irrelevant—even if the statement was made with malice, the truth remains a defense.

B. What Is "Substantial Truth"?

A statement does not have to be 100% factually accurate to qualify as true—it only needs to be substantially true, meaning that its "gist" or "sting" is accurate. Courts have upheld this principle in various cases:

Virginia and Federal Case Law on Substantial Truth

• Crane v. New York World Tel. Corp., 308 N.Y. 470, 477 (1955) – A newspaper reported that a plaintiff was "under indictment," when in reality, they had only been accused of a crime but not formally indicted. The court ruled that this was false and defamatory because the factual difference was significant.

• Dibble v. WROC TV Channel 8, 530 N.Y.S.2d 388 (1988) – A report claiming the plaintiff was charged with fraud and embezzlement was defamatory because, in reality, the plaintiff had only been charged with one count of grand larceny.

• Brown v. Shupe, 629 F.Supp. 760 (E.D. Va. 1985) – The defendant claimed that the plaintiff was dishonest. The court found this substantially true because the plaintiff had a federal conviction related to dishonesty.

C. Virginia’s "Slight Inaccuracy" Rule

Even if a minor detail in a statement is incorrect, it does not make the statement defamatory as long as the core meaning remains true.

"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." — Saleeby v. Free Press, Inc., 91 S.E.2d 405, 407 (Va. 1956)

---

2. Absolute Privilege Under Virginia Defamation Law

Certain communications are absolutely privileged, meaning that the speaker is completely immune from defamation liability, even if the statement was false or malicious.

Virginia courts have recognized that:

"Words spoken or written in a judicial or quasi-judicial proceeding are absolutely privileged when relevant to the subject matter of the proceeding."
— Katz v. Odin, Feldman & Pittleman, P.C., 332 F.Supp.2d 909 (E.D. Va. 2004)

A. Absolute Privilege in Judicial Proceedings

Defamatory statements made in the course of litigation, arbitration, or other legal proceedings are protected.

Virginia Case Law on Absolute Privilege

• Spencer v. Looney, 116 Va. 767, 82 S.E. 745 (1914) – A party cannot be sued for defamation based on statements made in court filings or testimony.

• Penick v. Ratcliffe, 149 Va. 618 (1927) – The privilege extends beyond courtrooms to cover any judicial or quasi-judicial proceeding.

B. Communications Covered by Absolute Privilege

Protected Statements	Case Example
Fee arbitrations	Katz v. Odin, Feldman & Pittleman, P.C., 332 F.Supp.2d 909 (E.D. Va. 2004)
EEOC proceedings	Corbin v. Washington Fire & Marine Ins. Co., 278 F.Supp. 393 (D.S.C.1968)
Statements in settlement negotiations	Petty v. Gen. Accident Fire & Life Assurance Corp., 365 F.2d 419 (3rd Cir.1966)
Communications between attorneys	Rodgers v. Wise, 193 S.C. 5, 7 S.E.2d 517 (1940)

C. What Is NOT Covered by Absolute Privilege?

• Departmental hearings before the Superintendent of the Virginia State Police (Elder v. Holland, 208 Va. 15, 155 S.E.2d 369 (1967)) are not privileged.

• Statements made outside legal proceedings (such as press releases) are not automatically privileged.

---

3. Qualified Privilege Under Virginia Defamation Law

Qualified privilege allows certain statements to be protected from defamation liability, but only if made in good faith and without actual malice.

"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, 334 S.E.2d 846 (1985)

A. Overcoming Qualified Privilege

A plaintiff can defeat a qualified privilege by proving that the defendant acted with:

• Malice or ill will

• Reckless disregard for the truth

• Excessive publication of the statement to unnecessary parties

B. Common Examples of Qualified Privilege

• Workplace Evaluations – Employers may make negative statements about employees in performance reviews without being liable for defamation.

• Credit Reports – Lenders reporting delinquent accounts are generally protected.

• Statements to Law Enforcement – Individuals who report crimes in good faith are usually protected.

---

4. Fair Report Privilege – Defamation and the Press

Under Virginia law, accurate reports of public records are privileged.

"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."
— Alexandria Gazette Corp. v. West, 93 S.E.2d 274 (Va. 1956)

A. Key Cases on Fair Report Privilege

• Chapin v. Knight-Ridder, Inc., 993 F.2d 1087 (4th Cir. 1993) – The fair report privilege applies to government actions but does not extend beyond the facts of official records.

• Reuber v. Food Chemical News, Inc., 925 F.2d 703 (4th Cir. 1991) – Official reprimands leaked to the press were protected under the privilege.

---

5. Virginia’s Statutory Defamation Privileges

Virginia provides additional statutory protections against defamation claims in specific situations:

Statute	Protection Provided
Va. Code § 8.01-46.1(A)	Protects employers providing workplace references.
Va. Code § 8.01-49	Protects radio and TV stations from liability for defamatory statements made by third-party guests.
Va. Code § 38.2-618	Shields insurance companies from liability for sharing client financial information.

---

 

Contact Fox & Moghul – Virginia’s Premier Defamation Attorneys

Defamation cases involve complex legal defenses that require careful analysis. Whether you are suing for defamation or defending against false allegations, Fox & Moghul provides top-tier legal representation.

Call us today for a consultation!
Contact Virginia’s leading defamation lawyers now.