Competing for customers by telling them a competitor is “under investigation” is surprisingly common. I hear this from prospective clients all the time. Most of the time, the accusation isn’t any more specific than that the client is under investigation for something. No one really knows what exactly, but the…
Virginia Code § 8.01-223.2, informally known as the anti-SLAPP (Strategic Lawsuit Against Public Participation) statute, provides immunity in tort for statements on matters of public concern (subject to certain exceptions not relevant here). I recently had an issue arise in a case that prompted the question of what “that would…
When public figures bring defamation lawsuits, First Amendment concerns dictate that they must demonstrate “actual malice” as a prerequisite to recovery (See New York Times Co. v. Sullivan, 376 U.S. 254, 280 (1964)). This is generally defined as either actual knowledge of falsity or, at a minimum, reckless disregard for…
Defamation actions cannot be based on expressions of pure opinion because such statements are protected by the First Amendment. To survive a motion to dismiss, a plaintiff needs to allege a false assertion of fact. Separating fact from opinion, however, is not always as clear-cut as one might expect. Courts…
To be actionable as defamation in Virginia, the words used must be more harmful to a person’s reputation than a common insult or an accusation that most people would consider harmless or unimportant in evaluating a person’s character. Defamatory words are those which “tend so to harm the reputation of…
If truth is a complete defense to a defamation action, what about “scientific truth”? Are scientific findings “facts” that can form the basis of a defamation action if a particular scientist contends they are inaccurate? If so, how much of a consensus is required before a matter of scientific inquiry…
Section 8.01-223.2 of the Virginia Code, unofficially recognized as Virginia’s anti-SLAPP statute, is designed to deter frivolous “SLAPP” lawsuits brought for the improper purpose of harassing individuals who exercise their protected right to freedom of speech. The statute immunizes against defamation liability most statements made in good faith on matters…
When does ordinary workplace criticism become actionable defamation? While there’s no hard and fast rule, the answer usually lies in the extent to which the criticism involves provably false factual assertions. Expressions of pure opinion are not actionable, so a performance review that merely contains negative assessments of an employee’s…
Virginia’s anti-SLAPP statute has received a lot of flak for supposedly not being strong enough to deter frivolous defamation actions designed to chill the exercise of First Amendment rights. A case decided last week down in Roanoke, however, demonstrates that just because fee awards are discretionary does not mean that…
When a party or an attorney files an objectively baseless defamation complaint, the trial court is required to impose sanctions on one or both of them, including but not limited to an award of attorneys’ fees. This is the main takeaway from Nestler v. Scarabelli decided a few days ago…