COVID-19 ALERT: During the COVID-19 crisis, the attorneys at Fox & Moghul are working and available to discuss your case with you via phone or online media.

Defamation

1. 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 Virginia Defamation Lawyers 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, embarrassment 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).

A. Defamation and the Media.

Our Virginia Defamation Lawyer 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 Virginia Defamation Lawyer who is knowledgeable and experienced in the area of the First Amendment and Defamation Law.

B. 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. Our Virginia Defamation Lawyer 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 a Virginia defamation lawyer for guidance in the next steps of taking recourse for the statement that caused harm to you.

C. 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. Our Virginia Defamation Lawyer has the experience necessary to stand up for people falsely accused of criminal conduct.

2. ELEMENTS YOU MUST PROVE TO WIN YOUR DEFAMATION CASE

Our Virginia Defamation Lawyers 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 (see below), 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.

I. 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).

II. 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.

3. 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. Contact our Virginia Defamation Lawyer immediately.

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

4. 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.”

5. DAMAGES.

A. 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).

B. 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.

C. 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.

D. 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.

For more information on applicable defenses and privileges to defamation actions, please see this article here or contact Fox and Moghul for a consult.