Broadly speaking, defamation is any false communication that damages a person’s reputation. That simple definition, however, belies the complexities of defamation law, especially in Virginia. For instance, what is a communication? Who must prove that the communication is false? Must the communicator have known of the statement’s falsity? When is a person’s reputation damaged? How are such damages measurable? In this article, Fishwick & Associates will address these questions and others in providing an overview of defamation law in Virginia.
Elements of Defamation
Defamation occurs upon the (1) publication of (2) an actionable statement (3) of or concerning the plaintiff with (4) the requisite intent. “Actionable” simply means that the statement must be both false and defamatory. Thus, in order to successfully prevail on a defamation claim, a plaintiff must prove all of these elements.
The Statement Must Be Published
Legally speaking, “publication” just means that the statement was viewed or heard by a person aside from either the plaintiff or the defendant: a third party. There is no requirement it be published in the formal sense, e.g., in a newspaper, book, or video. So long as some person aside from the subject of the statement receives it, publication has occurred.
For example, if John drafts a defamatory letter about Mary, but never sends it, then Mary has no claim for defamation. Even if John sends the letter, it is not published until a third party opens the letter and reads it. On the other hand, if John shows the letter to Bob before tearing it to shreds, it has been published.
Note that, in many jurisdictions, defamation actions are known as libel if the statement is written and slander if the statement is oral. However, in Virginia, there is no distinction between actions for libel and those for slander; whether written or oral, the claim is one for defamation.
The Statement Must Be False
An “actionable” statement must be both false and defamatory. While, in the past, statements were presumed false, and it was the defendant’s burden to prove that the statement was true, now it is the plaintiff’s burden to prove by a preponderance of the evidence that a statement is false.
The requirement that a statement be false in order to be actionable as defamation means that statements of opinion are generally not actionable because such statements cannot be objectively characterized as true or false. Thus, if John publishes a statement that he thinks Mary is an awful person, there is no claim for defamation
Furthermore, the statement must be substantially true, not necessarily entirely true. In other words, slight inaccuracies of expression are immaterial provided the defamatory charge is true in substance. Thus, if John publishes a statement that Mary stole a box of red widgets, but in truth Mary stole a box of identically valued blue widgets, then a claim against John for defamation would likely not be successful; the “sting” of the statement would not align with the false aspect of it.
Finally, a true statement may nevertheless be considered false for defamation purposes if it contains false inferences, implications, or insinuations. In other words, even if a statement is true if taken out of context, it may contain such defamatory innuendo as to be actionable as defamation.
The Supreme Court of Virginia explored this concept of defamatory innuendo in the case Pendleton v. Newsome. There, the child of a nurse died at school as a result of a severe allergic reaction to a peanut provided to her by a classmate. The child’s death received prompt and widespread publicity in news reports published by local, national, and international media. These reports contained many statements and comments made by the defendant school officials, which insinuated that the death of the child was the mother’s fault. For example, they stated that “[p]arents need to provide all necessary medication their child needs to the school. That is the responsibility of the parent.”
The Supreme Court held such statements could be actionable as defamation. Addressing the defendants’ argument that they did not say anything untruthful, the Court said: “The defendants’ statements here, however, may be true if taken out of context, but in the context of the alleged publicity attending the case when the statements were published, it cannot be said . . . they were not capable of conveying the defamatory innuendo that the plaintiff bore responsibility for her child’s death.” The Court also made clear that “a libel-by-implication plaintiff” need not “make an especially rigorous showing where the expressed facts are literally true. The plaintiff’s burden is proof by a preponderance of the evidence.”
The Statement Must Be Defamatory
A statement is not actionable just because it is false. It must also be defamatory, meaning that it harms the plaintiff or the plaintiff’s reputation. Thus, if John writes an article about Mary, and states that Mary was wearing a green dress, when she was in fact wearing a yellow dress, John’s statement would not be actionable; it was false, but wearing a green dress is not harmful to one’s reputation (at least, we hope not—we are not fashion experts). In any given case, whether a statement harms the plaintiff or the plaintiff’s reputation must be resolved by the jury.
Some categories of statements, however, are presumed defamatory. They are what is known as defamation per se. These categories are:
1. Statements which impute to a person the commission of some criminal offense involving moral turpitude.
2. Statements which impute that a person is infected with some contagious disease, where if the charge is true, it would exclude the party from society.
3. Statements which impute to a person unfitness to perform the duties of an office or employment, or want of integrity in the discharge of the duties of such an office or employment.
4. Statements which prejudice such person in his or her profession or trade.
With respect to statements in the above categories, the court will presume that the plaintiff’s reputation has been damaged as a result, thereby making it easier for the defamation plaintiff to succeed on the merits of their case.
The Statement Must Be “Of or Concerning” the Plaintiff
A statement that is both false and defamatory is actionable only if the statement is “of or concerning” the plaintiff. This does not mean that the published statement must refer to the plaintiff by name, however. Rather, the plaintiff satisfies this element by showing that the publication was intended to refer to the plaintiff and would be so understood by persons reading or hearing it who knew the plaintiff. Thus, as the Supreme Court of Virginia has held in a case called Wjla-Tv v. Levin:
“[S]tatements or publications by the same defendant regarding one specific subject or event and made over a relatively short period of time, some of which clearly identify the plaintiff and others which do not, may be considered together for the purpose of establishing that the plaintiff was the person ’of or concerning’ whom the alleged defamatory statements were made.”Wjla-Tv v. Levin, 264 Va. 140, 146, 564 S.E.2d 383, 386 (2002).
What State of Mind is Required?
Legal liability often requires, in addition to a bad act, a bad intent or state of mind; defamation is no different. A person cannot be held liable for publishing a false and defamatory statement alone; rather, depending on the nature of the statement and its subject, the publisher must have known that the statement was false or acted recklessly or negligently in failing to determine the falsity of the statement.
For many years, defendants could be held liable for defamation even if they honestly believed that the statement they published was true, so long as they were negligent—in other words, failed to act as a reasonable person would—in forming that belief. However, in the landmark 1964 decision of New York Times Co. v. Sullivan, the United States Supreme Court held that the freedom of speech protections in the First Amendment to the U.S. Constitution require a stricter standard with respect to statements about public officials. The doctrine of the Sullivan case, which dealt with public officials, was expanded over the years to include all public figures.
Post-Sullivan, such defamation claims can only succeed if the defendant published the statement with “actual malice,” which means that the defendant either knew the statement was false or acted with reckless disregard as to whether or not it was true. This is typically a difficult standard to meet, and, practically speaking, often prevents public figures from pursuing defamation claims.
When the public figure doctrine of Sullivan is not applicable, actual malice need not be proven. Rather, it is enough to show that the publisher of a defamatory statement acted negligently or lacked a reasonable basis for believing the statement was false. Unsurprisingly, it easier to establish mere negligence as opposed to actual malice; of course, if a plaintiff who is a private figure can demonstrate that the defendant knew their statement was false, so much the better.
However, if the defamatory statements regard matters of public concern, even private figures must show actual malice to be awarded presumed or punitive damages. In effect, this makes defamation cases regarding matters of public concern more of a challenge to pursue, as compensatory damages—that is, the actual loss that can be directly attributed to the defamatory statement—are often difficult to establish.
Public vs. Private Figures
Determining whether the plaintiff is a public figure or a private figure is a vital first step in any defamation case, as it can change the very nature of the lawsuit. Unlike many other aspects of a defamation case, the public figure determination is not made by the jury, but the court. In other words, it is a question of law.
There is no bright-line rule to determine when a person is a public figure or not. The President of the United States, for instance, is a clear public figure. For borderline cases, the Supreme Court of Virginia’s decisions offer some guidance. For example, the Court has held that a public school teacher who was not an elected official and neither influenced nor even appeared to influence or control any public affairs or school policy, was not a public figure for the purposes of defamation law. On the other hand, the mayor and incumbent candidate for City Council of Colonial Heights, Virginia, was held to be a public figure.
To make matters more complex, a plaintiff may be considered a so-called “limited purpose public figure.” A limited-purpose public figure is a person who would ordinarily be considered a private figure, but who has voluntarily participated in or is drawn into a particular public controversy, thus becoming a public figure for a limited range of issues.
There are two factors that courts look to in making this determination—and again, it is the court that decides the issue, not the jury. First, was there a particular public controversy that gave rise to the defamation? Second, was the nature and extent of the plaintiff’s participation in that particular controversy sufficient to justify “public figure” status? Thus, whether a person is a limited-purpose public figure or not is a very fact specific inquiry that makes prediction difficult.
The United States Supreme Court’s cases, however, suggest that the scope limited purpose public figure doctrine is, well, limited. The Court has held that (1) a woman who had resorted to judicial process to obtain a divorce and whose marital life was discussed in “social circles”; (2) a scientist who received federal grants and had some media exposure; and (3) a defendant who failed to appear before a grand jury and was cited for contempt, attracting media attention, were all not limited purpose public figures. The Court’s reasoning can be summed up as follows: “A private individual is not automatically transformed into a public figure just by becoming involved in or associated with a matter that attracts public attention.”
As the above discussion makes clear, alleging a valid claim of defamation in Virginia is no easy task. But even if a plaintiff states a prima facie claim for defamation, the defendant may raise defenses that will nevertheless preclude the plaintiff’s claim. Below are some of the more common defenses.
Virginia courts frequently state that truth is an absolute defense to defamation. And it is, in a sense. At common law, a person accused of defamation would not be liable to the plaintiff at all if their words, though damaging to the plaintiff’s reputation, were true. However, as noted above, it is more accurate now to say that falsity is an element of defamation, as opposed to truth being a defense. The net effect, of course, is the same—unless a statement is false, there can be no successful claim for defamation.
The other predominant defense to defamation is privilege. There are times and circumstances when a person may utter something completely false and completely defamatory, and still not be liable for any damages caused to the plaintiff’s reputation. Privilege, in the defamation context, comes in two flavors: absolute and qualified.
Absolute privilege, as the name suggests, completely shields the defaming party from liability. Even if the publisher knows their statements are false, they cannot be sued for defamation if the privilege applies.
There are three general categories where the absolute privilege applies: (1) statements made during proceedings of legislative bodies; (2) statements made during judicial proceedings; and (3) communications by military and naval officers. However, with respect to the first two categories (the contest in which the privilege is most frequently asserted), the statements must be relevant and pertinent to the proceeding.
Qualified privilege, on the other hand, is more complex. The rule protects a communication on a subject matter in which the person communicating has an interest, or owes a legal, moral, or social duty, if made to a person having a corresponding interest or duty. But what does that mean in practice?
Some examples are illustrative. The Supreme Court of Virginia has found that statements communicated by a peer review board to the board of visitors of a university were entitled to qualified privilege. And, by statute, if a merchant has probable cause to believe a customer has shoplifted, the merchant is not liable for any defamatory statements to that effect. Another Virginia statute provided immunity for statements made before a local governing body, such as a city council, so long as they were not made with actual malice.
Statute of Limitations
Finally, one important aspect of defamation law in Virginia is its statute of limitations. While many states have a two-year or even three-year statute of limitations, in Virginia all defamation must be brought within one year after the cause of action accrues.
In defamation, the cause of action accrues when the defamatory statement is published—not when the subject of the defamatory statement first learns of it. Thus, if John wrote an article falsely accusing Mary of a crime and published it on January 1, 2019, but Mary did not learn of the article until January 2, 2020, any lawsuit for defamation filed by Mary against John will be barred by the statute of limitations. There are, however, two important exception to this rule.
First, if a defamatory statement is republished, then the cause of action accrues from the date of the republication. Furthermore, not only can a defamed party sue the republisher of the statement, but also the originator, so long as it was a “natural and probable consequence” of the original publication (or was otherwise authorized).
Second, in 2015 Virginia’s General Assembly amended the statute of limitations for defamation, by providing an exception when a statement is published anonymously (or under a false name) on the Internet. In those circumstances, the statute of limitations is “tolled”—meaning, not counted—until the identity of the publisher is discovered or should have been discovered with the exercise of due diligence.
Fishwick & Associates: Experienced Defamation Attorneys
As this article shows, defamation law in Virginia is by no means simple; it is complicated by numerous rules, legal doctrines, and exceptions. If you believe you have been defamed or are being accused of defamation (libel or slander), Fishwick & Associates can provide legal assistance and help you understand your legal options. To schedule your free and confidential consultation, complete our online contact form or call us at 540.345.5890.
Fleming v. Moore, 221 Va. 884, 889, 275 S.E.2d 632, 635 (1981).
Tharpe v. Saunders, 285 Va. 476, 737 S.E.2d 890 (2013).
Hines v. Gravins, 136 Va. 313, 112 S.E. 869. 870 (1922).
Sun Life Assur. Co. v. Bailey, 101 Va. 443, 44 S.E. 692, 693 (1903).
Jordan v. Kollman, 269 Va. 569, 612 S.E.2d 203 (2005).
New York Times Co. v. Sullivan, 376 U.S. 254 (1964).
Saleeby v. Free Press, Inc., 197 Va. 761, 763, 91 S.E. 2d 405, 407 (1956).
Chapin v. Knight-Ridder, Inc., 993 F.2d 1087 (4th Cir. 1993).
Pendleton v. Newsome, 290 Va. 162, 772 S.E.2d 759 (2015).
Wjla-Tv v. Levin, 264 Va. 140, 146, 564 S.E.2d 383, 386 (2002).
Hyland v. Raytheon Tech. Servs. Co., 277 Va. 40, 670 S.E.2d 746 (2009).
New York Times Co. v. Sullivan, 376 U.S. 254 (1964).
Shenandoah Publ’g House, Inc. v. Gunter, 245 Va. 320, 427 S.E.2d 370 (1993).
Richmond Newspapers v. Lipscomb, 234 Va. 277, 362 S.E.2d 32 (1987).
Gertz v. Robert Welch, 418 U.S. 323, 94 S. Ct. 2997 (1974).
Foretich v. Capital Cities/ABC, 37 F.3d 1541 (4th Cir. 1994).
Time, Inc. v. Firestone, 424 U.S. 448, 96 S. Ct. 958 (1976).
Hutchinson v. Proxmire, 443 U.S. 111, 99 S. Ct. 2675 (1979).
Wolston v. Reader’s Digest Ass’n, 443 U.S. 157, 167, 99 S. Ct. 2701, 2707 (1979).
Alexandria Gazette Corp. v. West, 198 Va. 154, 93 S.E.2d 274 (1956).
Donohoe Construction v. Mt. Vernon Assocs., 235 Va. 531, 369 S.E.2d 857 (1988).
Mansfield v. Bernabei, 284 Va. 116, 727 S.E.2d 69 (2012).
Larimore v. Blaylock, 259 Va. 568, 528 S.E.2d 119 (2000).
Va. Code § 8.01-226.9.
Va. Code § 8.01-223.2.
Va. Code § 8.01-247.1.
Weaver v. Beneficial Finance Co., 199 Va. 196, 98 S.E.2d 687 (1957).
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