July 25, 2012 – On the third day of trial in the Alexandria Federal Court, the jury returned a verdict for the plaintiff, represented by Civil Rights Attorneys Thomas H. Roberts and Andrew T. Bodoh, with the Richmond law firm of Thomas H. Roberts & Associates, P.C. in a case alleging defamation and conspiracy to harm a business through E-mails and Facebook postings.
The defendant’s attempt to escape liability included attempts to direct the jury’s attention to statements of others in news reports concerning the plaintiff and to other controversies involving the plaintiff.
The evidence submitted to the jury showed that the defendant’s numerous statements attacking the plaintiff and his business had been shared by others through defendant’s Facebook page. The plaintiff argued that the defendant joined with others in a campaign to share the postings on Facebook forming a basis for the conspiracy claim. The jury weighed and carefully considered the evidence including testimony of witnesses and documents. The jury determined that there was an actual or attempted conspiracy and that the statements made by the defendant were false, published to third persons and that both caused injury to the plaintiff and his business.
The jury awarded $75,000 in damages. Under Virginia law, the plaintiff is entitled to treble the damages for the conspiracy claim under § 18.2-500 and costs of suit, including a reasonable fee to plaintiff’s counsel.
§ 18.2-500. Same; civil relief; damages and counsel fees; injunctions.
A. Any person who shall be injured in his reputation, trade, business or profession by reason of a violation of § 18.2-499, may sue therefor and recover three-fold the damages by him sustained, and the costs of suit, including a reasonable fee to plaintiff’s counsel, and without limiting the generality of the term, “damages” shall include loss of profits.
B. Whenever a person shall duly file a civil action in the circuit court of any county or city against any person alleging violations of the provisions of § 18.2-499 and praying that such party defendant be restrained and enjoined from continuing the acts complained of, such court shall have jurisdiction to hear and determine the issues involved, to issue injunctions pendente lite and permanent injunctions and to decree damages and costs of suit, including reasonable counsel fees to complainants’ and defendants’ counsel.
In The Gazette, Inc., v. Harris, 229 Va. 1, 15, 19, 37 (1985), the Virginia Supreme Court wrote:
We hold, therefore, that in an action brought by a private individual to recover actual, compensatory damages for a defamatory publication, the 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. In addition, we hold that such liability may be based upon negligence, whether or not the publication in question relates to a matter of public or general concern.
The application of this negligence standard is expressly limited, however, to circumstances where the defamatory statement makes substantial danger to reputation apparent. The trial judge shall make such determination as a matter of law. If, on the other hand, no substantial danger to reputation is apparent from the statement in issue, New York Times malice must be established to recover compensatory damages.
. . .
Another subsidiary issue that arises from establishment of a negligence standard for compensatory damages is the current status of the common-law qualified privileges in Virginia. Unlike some jurisdictions, Virginia does not permit a qualified privilege to be defeated upon a showing of mere negligence. We require proof of common-law malice, that is, behavior actuated by motives of personal spite, or ill-will, independent of the occasion on which the communication was made. Story v. Newspapers, Inc., 202 Va. 588, 590, 118 S.E.2d 668, 670 (1961). This being a more stringent standard than negligence, the qualified privileges survive in Virginia. This means, of course, that the defendant may still avoid liability based on qualified privilege even though the negligence standard is met by the plaintiff. When a qualified privilege is established and not defeated by a plaintiff’s evidence of common-law malice, the negligence standard is subsumed in the higher standard and it is of no consequence that the plaintiff might have met the lower standard of negligence. Jacron Sales Co., 276 Md. at 600, 350 A.2d at 699-700.
. . . .
In Virginia, a libel plaintiff must show that the alleged libel was published “of or concerning” him. Cave v. Shelor, 16 Va. (2 Munf.) 193 (1811). He need not show that he was mentioned by name in the publication. Instead, the plaintiff satisfies the “of or concerning” test if he shows that the publication was intended to refer to him and would be so understood by persons reading it who knew him. Powell v. Young, 151 Va. 985, 997-98, 144 S.E. 624, 627, rev’d on other grounds, 151 Va. 1002, 145 S.E. 731 (1928). In other words, the test is met if the plaintiff shows that the publication was “in its description or identification such as to lead those who knew or knew of the plaintiff to believe that the article was intended to refer to [him].” Butler v. News-Leader Co., 104 Va. 1, 7, 51 S.E. 213, 215 (1905). But if the publication on its face does not show that it applies to the plaintiff, the publication is not actionable, unless the allegations and supporting contemporaneous facts connect the libelous words to the plaintiff. If the rule were otherwise, any plaintiff could adopt and apply to himself any libelous matter and obtain a recovery. Ewell v. Boutwell, 138 Va. 402, 413, 121 S.E. 912, 915 (1924).
The materials are prepared for information purposes only. The materials are not legal advice and 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.
Thomas H. Roberts & Associates, P.C.
105 S 1st Street
Richmond, Va 23219
804-783-2000 x 105
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