|
Contact Us Immediately
Litigation Overview:
- Slander, defamation and libel are all treated the same in
Virginia.
- Defamation is a false statement of fact published or communicated
to another person that causes injury to the reputation of the
subject of the statement.
- Truth is an absolute defense to a defamation law suit
- Some defendants will escape liability if they spoke made the
statement to a person who had a reason to hear the statement and the
defendant did not know the statement was false when it was said -
this defense is known as a "qualified privilege."
- In Virginia you must plead the exact words used
- "Defamation per se" -- When the defamatory statement
involves defamatory words that (1) impute commission of a criminal
offense involving moral turpitude, (2) impute infection with some
contagious disease, (3) impute unfitness to perform the duties of an
office or employment, or want of integrity in the discharge of such
duties, or (4) prejudice a person in his profession or trade, you do
not have to prove damages as they are presumed, otherwise you must
prove how the statement damaged you.
One Virginia Court provided the following exhaustive summary:
What is defamation?
To defame a person is to attack his or her good name, thereby injuring his or her
reputation. See Webster's II New Riverside University Dictionary (1984). But not
every unflattering or unwelcome remark will sustain a libel suit. To be
defamatory as a matter of law, a statement must be "more than merely
unpleasant or offensive;" it must "make the plaintiff appear odious,
infamous, or ridiculous." McBride v. Merrell Dow and Pharmaceuticals, Inc.,
540 F.Supp. 1252, 1254 (D.D.C.1982), aff'd in part and rev'd in part on other
grounds, 230 App. D.C. 403, 717 F.2d 1460 (D.C.Cir.1983). See also R. Sack,
Libel, Slander and Related Problems 45 (1980) ("There is common agreement that a
communication that is merely unflattering, annoying, irksome, or embarrassing,
or that hurts the plaintiff's feelings, without more, is not actionable.").
Statements may be defamatory by implication, inference, innuendo, or
insinuation, provided the alleged defamatory meaning is plain. See, e.g.,
Milkovich, U.S. at , 110 S.Ct. at 2707; White v. Fraternal Order of Police, 285
App. D.C. 273, 909 F.2d 512 (D.C.Cir.1990); Wilder, 551 F.Supp. at 623; Gen.
Products v. Meredith Corp., 526 F.Supp. 546 (E.D.Va.1981); Gazette, 325 S.E.2d
at 713; Carwile v. Richmond Newspapers, Inc., 196 Va. 1, 82 S.E.2d 588, 591-92
(Va.1954). The established test under Virginia law for divining whether
statements are defamatory is found in Carwile:
Although varying circumstances often make it difficult to determine whether
particular language is defamatory, it is a general rule that allegedly
defamatory words are to be taken in their plain and natural meaning and to be
understood by courts and juries as other people would understand them, and
according to the sense in which they appear to have been used.... In determining
whether the words and statements complained of in the instant case are
reasonably capable of the meaning ascribed to them by innuendo, every fair
inference that may be drawn from the pleadings must be resolved in the
plaintiff's favor. However, the meaning of the alleged defamatory language can
not, by innuendo, be extended beyond its ordinary and common acceptation. The
province of the innuendo is to show how the words used are defamatory, and how
they relate to the plaintiff, but it can not introduce new matter, nor extend
the meaning of the words used, or make that certain which is in fact uncertain.
82 S.E.2d at 591-92 (citations omitted). Moreover, a plaintiff cannot combine
the damaging nature of certain true statements with the falsity of other,
immaterial statements in order to provide the basis for a defamation claim. See
AIDS Counseling & Testing Centers v. Group W Television, Inc., 903 F.2d 1000
(4th Cir.1990). In addition, under Virginia law statements which impute to a
business or professional person conduct which tends to injure her in her
business or profession are actionable as defamation per se, without proof of
special damages. See Carwile, 82 S.E.2d at 592.
But the inquiry into whether a statement is actionable does not end with a
determination that it is, or is not, defamatory. Not all defamatory statements
are actionable. First, as earlier noted, a defamatory statement must be false to
be actionable, truth being an absolute defense to a libel action. See, e.g.,
Freedlander v. Edens Broadcasting, Inc., 734 F.Supp. 221 (E.D.Va.1990). Second,
certain statements of opinion, even if defamatory, are constitutionally
protected. See Milkovich, U.S. at , 110 S.Ct. at 2705-08; Gertz, 418 U.S. at
339-40. Specifically, opinion statements, defamatory or otherwise, are not
actionable unless they contain provably true or false factual connotations.
See Milkovich, U.S. at , 110 S.Ct. at 2705-06. Third, in some circumstances
defamatory words are not actionable under the doctrine of libel by implication
of true facts. See White, 909 F.2d at 512. Under this doctrine, liability for
libelous implications drawn from true facts attaches only where there is
"by the particular manner or language in which the true facts are conveyed
... affirmative evidence suggesting that the defendant intends or endorses the
defamatory inference." White, 909 F.2d at 520 (emphasis in original). As
plaintiffs correctly assert, White applies only where the facts giving rise to
an alleged defamatory implication are true. (Emphasis added)
2. Libel Per Se. In Perk v. Vector Resources Group, Ltd., 253 Va.
310, 316, 485 S.E.2d 140 (1997), the Supreme Court affirmed the trial court's
sustaining of a demurrer to a libel action, where an attorney sued defendants
who he claimed defamed him by telling some of a hospital's debtors that certain
payments made by the debtors had not been reported by the attorney. In ruling
the Supreme Court stated: "At common law, defamatory words which are
actionable per se include ... [t]hose 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. Those
which prejudice such person in his or her profession or trade. (Emphasis
added) Id. quoting Carwile v. Richmond Newspapers, 196 Va.
1, 7, 82 S.E.2d 588, 591 (1954). See also Great Coastal Express v.
Ellington, 230 Va. 142, 147, 147 334 S.E.2d 846 (1985).
Can the Derogatory Words be Objectively Tested?
The first step in any defamation analysis is to examine the words used to
determine whether the language can be fairly viewed to impugn the reputation of
the plaintiff. Reputation is personal to the individual, so defamation derives
from an attack directed at the individual as opposed to a attack on ideas or
opinions espoused by the individual, which in a free society are generally fair
game for discussion and attack. While the general rule may be that "[w]hether
a statement is characterized as a fact or opinion is no longer a relevant
inquiry in determining whether it is constitutionally privileged," 50
Am.Jur.2d Libel and Slander § 105, citing Milkovich v. Lorain Journal
Company, 497 U.S. 1, 111 L.Ed.2d 1, 110 S.Ct. 2695, the opinion rule still
prevails in Virginia. Unless there is a factual kernel contained in the
statement, which can be objectively proven to be true or false, there is no
statement which can be a viable foundation for a defamation action.
The fact versus opinion distinction is not always a bright line. Generally
descriptive words imply facts, and evaluative words imply an opinion, but even
this logical distinction fails many times in actual application. "Big"
is descriptive, but it may also be an opinion. The distinction between fact and
value has provided grist for philosophers since the time of Aristotle, so the
fact-opinion dichotomy actually simply provides general guidance as opposed to a
concrete analytic calculus. Words are always colored by the context in which
they are used and the actual state of human knowledge at the time of their
utterance. In Copernicus's time, the majority view was that the earth was the
center of the universe, and his thesis that the earth revolved around the sun
was an heretical opinion. Given the relative nature and infinite variety of
human expression, the dispositive distinction seems to involve a practical
consideration of whether the defamatory comment could be proven to be true or
false. If it is not susceptible to proof of falsity, then it is not actionable;
therefore, it is simply an opinion.
In Am. Communs. Network, Inc. v. Williams, 264 Va. 336, 340, 568 S.E.2d
683 (2002), the Supreme Court reaffirmed its holding in Williams v. Garraghty,
249 Va. 224, 233, 455 S.E. 209 (1995) that:
pure expressions of opinion cannot form the basis of a defamation action,
but ... "factual statements made to support or justify an opinion, however,
can form the basis of an action for defamation." See Swengler v. ITT Corp.,
993 F.2d 1063, 1071 (4th Cir.1993) (construing Virginia law). It is for a court,
not a jury, to determine, as a matter of law, whether an alleged defamatory
statement is one of fact or of opinion." (emphasis added)
This statement of the law is not as broad as the Restatement (Second) of
Torts § 566 view:
"A defamatory communication may consist of a statement in the form of an
opinion, but a statement of this nature is actionable only if it implies the
allegation of undisclosed defamatory facts as the basis for the opinion."
Restatement (Second) of Torts § 566. "[I]f the recipient draws the
reasonable conclusion that the derogatory opinion expressed in the comment must
have been based on undisclosed defamatory facts, the defendant is subject to
liability. The defendant cannot insist that the undisclosed facts were not
defamatory but that he unreasonably formed the derogatory opinion from
them." Id., comment c.
Virginia has never expressly embraced the Restatement view that a statement
of opinion, which does not disclose defamatory facts, may be actionable "if
it implies the allegation of undisclosed defamatory facts ...," and the
"recipient draws the reasonable conclusion that the derogatory opinion
expressed in the comment must have been based on undisclosed defamatory
facts...."
In American Communications, supra, Williams, who was a former
executive employee, alleged that the following statements about his management
were libelous:
"In June 2000, American Communications Network replaced the management team
of ACN Energy due to its failure to establish effective operations. The prior
management made two key mistakes:
"1. It did not have the organizational infrastructure needed to support the
24 markets it was aggressively entering. The complexity overwhelmed the
organization such that basic business processes were not established prior to
entering new markets.
"2. It decided to create, in house, a proprietary billing system rather
than initially leveraging off the local distribution company's (LDC) capability
of cost-effectively billing on behalf of the Company. Without the requisite
information technology (IT) and commercial organization in place to accommodate
24 different markets (each with its own unique IT and commercial issues), the
company delayed sending bills to a significant number of customers."
The Supreme Court ruled that the "the statements in the alleged defamatory
publication are either true or constitute opinion ...," American
Communications Network at 341, so the libel verdict was reversed.
The American Communications Network, supra, illustrates the Supreme
Court's steadfast adherence to the principle that expressions of pure opinion
unaccompanied by any facts expressed in the allegedly defamatory comment are not
a predicate for a defamation action. See, e.g., Chaves v. Johnson,
230 Va. 112 (1985) (The defendant who was a competitor wrote a letter to city
council after a bid award stating that the plaintiff architect, who had been
awarded the bid, had "no past experience" and was charging "an
unjustifiably high fee); and Yeagle v. Collegiate Times, 255 Va. 293, 497
S.E.2d 136 (1998)(The defendant called the plaintiff administrator the
"Director of Butt Licking."
Fuste v. Riverside Healthcare Assoc., 265 Va. 127, 133, (2003), is an
example of a case involving specific statements about a professional's work that
the Supreme Court held contained factual statements that were provably false:
Statements that are relative in nature and depend largely upon the speaker's
viewpoint are expressions of opinion. Chaves, 230 Va. at 119, 335 S.E.2d at 101.
Whether an alleged defamatory statement is one of fact or opinion is a question
of law and is, therefore, properly decided by a court instead of a jury. Id.,
335 S.E.2d at 102.
Applying these principles, we hold that the alleged statements that Drs. Fuste
and Vanden Hoek "abandoned" their patients and that there were
"concerns about their competence" not only prejudice the doctors in
the practice of their profession, see ... Carwile, 196 Va. at 7, 825 S.E.2d at
591, but also contain "a provably false factual connotation." WJLA-TV,
264 Va. at 156, 564 S .E.2d at 392. In other words, they are capable of being
proven true or false. For example, evidence could be presented to show whether
there were, in fact, concerns about the plaintiffs' competence. Similarly, since
the term "abandon" has a particular connotation in the context of a
doctor's professional responsibility to a patient, see ... Rosen v.
Greifenberger, 257 Va. 373, 380, 513 S.E.2d 861, 865 (1999) (a doctor has a duty
to continue services to a patient after accepting employment and cannot
thereafter voluntarily "abandon" a patient); Vann v. Harden, 187 Va.
555, 565-66, 47 S.E.2d 314, 319 (1948)(same), the statement that Drs. Fuste and
Vanden Hoek "abandoned" their patients is demonstrably true or false.
See ... Blue Ridge Bank v. Veribanc, Inc., 866 F.2d 681, 685 (4th Cir.1989) (a
speaker's choice of words and the context of an alleged defamatory statement
within the speech as a whole are factors to consider when deciding if a
challenged statement is one of fact or opinion).
"To determine if a publication is defamatory, the Court must look at the
entire communication and not examine separate sentences or portions or with an
eye constrained to the objectional feature alone. Construction will be derived
from the expressions used in the whole scope and apparent object of the
writer." 50 Am.Jur. 2D Libel and Slander § 124. "Allegedly
defamatory statements must be construed from the standpoint of the average
reader or average lay leader. The test is what construction would be placed upon
such language by the average reasonable person or the general public." 50
Am.Jur. 2D Libel and Slander § 127.
Defamation actions frequently arise in the context of an employee's discharge,
and where the discharged employee is not a professional, the alleged defamatory
statement must be analyzed to determine whether the statement "impute
unfitness to perform the duties of his employment or if they prejudice him in
his profession or trade. Statements which were considered actionable per se
include statements that the employee was discharged for theft or
misappropriation of funds, ... for alcoholism, inefficiency, lack of
punctuality, and unreliability." 50 Am.Jur.2d, Libel and Slander § 224.
Unfortunately, there is no touchstone by which to test the sufficiency of the
alleged defamatory statement other than to examine the statement in the context
in which it was made to determine whether it is defamatory. A review of the
statements about employees in defamation actions illustrates the fact specific
nature of the inquiry as to what is potentially defamatory and that the comment
must contain a factual statement which can be proved false: Fuste v.
Riverside Healthcare Assoc., 265 Va. 127, 133, (2003) (abandoned patients
and concerns about competence were provable facts); Southeastern Tidewater
Opportunity Project, Inc. v Bade, 246 Va. 273, 276, 435 S.E.2d 131
(1993)(statements in letter to board of directors about employee's law
violations and providing false information were privileged); Great Coastal
Express, Inc. v. Ellington, 230 Va. 142, 334 S.E.2d 846 (1985)(allegations
of attempted bribery against former employee when not proven was sufficient); Kroger
Co. v. Young, 210 Va. 564, 172 S.E.2d 720 (1970); Kay v. Collins, 39
Va. Cir. 150, 151-52 (Richmond 1996)(derogatory statements about specific work
habits, productivity, and ability to work with others were sufficient to support
defamation action); and Hargrave v. Tignor, 24 Va. Cir. 353 (Stafford
1991)(would not rehire because of conflicts with supervisor and other personnel
was privileged). The consistent thread through all of the cases where the
statements were held sufficient to support a defamation action is a statement of
specific facts such as law violations or specific poor work habits.
Where an individual is engaged in a profession, such as medicine, the law, or
teaching, see 50 Am.Jur.2d, Libel and Slander §§ 227, 229, and 231,
"[w]ords charging professional incompetence are actionable per se."
"When particular skill or ability is necessary [in the performance of the
plaintiff's vocation], an imputation that attributes a lack of skill or ability
[to the plaintiff] tends to harm the other [the plaintiff] in his business or
profession." Restatement (Second) of Torts § 572, comment c. "Words
charging professional incompetence are actionable per se." 50 Am.Jur.2d,
Libel and Slander § 216. Since Lamb was not engaged in a profession, the
statement that he "was incompetent" is not actionable because there is
no provable, objective, professional standard, akin to the standard of care of a
reasonable prudent physician, by which his conduct may be assessed to determine
his professional competency. Since the statement cannot be proven to be true or
false it cannot be the premise for a defamation action in this case.
The statement that Lamb "spent too much money on advertising" is
also a general opinion which cannot be objectively tested. "Too much"
is like "big," it is a relative concept and is pure opinion. However,
the statement that Lamb has "not properly managed his advertising budget
and had "misspent the [advertising] funds," (MFJ, pars. 52 and 54) can
be objectively tested and proven to be true or false. These statements may
fairly be viewed as adversely affecting the Plaintiff's reputation. As noted by
the Plaintiff, "misspent" means to "spend wrongly", which
may mean pay too much for services or goods, or spend money on ineffective
advertising, or spend money from the advertising budget on items unrelated to
advertising, any of these statements "impute to ... [Lamb] unfitness to
perform the duties ... of [his] employment. Perk v. Vector Resources,
253 Va. 310, 316. See generally Restatement (Second) of Torts §
573.
Contact:
Thomas H. Roberts, Esq.
Thomas H. Roberts & Associates, P.C.
Virginia Civil Rights Attorneys
105 S. 1st Street
Richmond, Virginia 23219
804) 783-2000
804) 783-2105
|
