The Virginia Defamation Law Blog

March 1, 2013

Fabricated Quotations Actionable if Harmful to Reputation

An essential requirement of any defamation action is that the alleged statement convey factual assertions. Pure expressions of opinion (i.e., those that neither state directly nor imply any assertion of objective fact) are protected by both the First Amendment and Section 12 of the Virginia Constitution. Whether a particular statement should be classified as fact or opinion is a threshold issue for the court to decide. Consequently, many libel and slander cases are dismissed at the outset and never reach a jury.

There’s not always a bright line between the two, and sometimes courts get it wrong. Yesterday, the Virginia Supreme Court reversed the decision of a Halifax County court to dismiss a defamation action on the ground the statement constituted opinion and not fact. The statement at issue was this: “Tharpe told me that Tharpe was going to screw the Authority like he did Fort Pickett.”

It’s certainly tempting to treat a statement like this as opinion, because whether or not someone got “screwed” is subject to differing viewpoints. But look closely. The speaker is not making the claim that Tharpe screwed the Authority or screwed Fort Pickett. What he is saying is that Tharpe TOLD him these things. Tharpe’s position in the trial court was that he never made such a statement. So the issue wasn’t whether or not getting “screwed” is a matter of fact or opinion, but whether it was a factual assertion to claim that Tharpe made this particular statement. The Virginia Supreme Court held that it was “indisputably capable of being proven true or false.”

February 22, 2013

False Accusation of Sexual Aggressiveness Per Se Defamatory, Claims FBI Agent

by Lee E. Berlik

Workplace defamation suits will usually raise privilege issues. When one employee complains to a manager or supervisor about another employee and falsely maligns the other employee’s reputation in the process, the court will need to sort out whether the complaint is protected by qualified privilege. If it is, the statement can’t form the basis for a claim unless it was made with common-law malice or made to persons having no business hearing it. Common-law malice is different than the constitutional “New York Times” malice so often discussed in analyzing defamation liability. Common-law malice generally refers to some form of ill will on behalf of the speaker, motivated by things like hatred or a desire for revenge. In Virginia, there is a presumption that the speaker acted without malice.

When a slanderous statement occurs at work, it often involves an accusation that a co-worker is unfit to perform the duties of his or her job, due to a lack of competence or lack of integrity. Statements such as these which prejudice a person is his or her profession fall into the defamation per se category, which means that a jury can presume the statement was harmful to the plaintiff, even if special damages are not proven.

Earlier this month, a case from Stafford County was removed to federal court in Alexandria. Suzanne Brown, the plaintiff, was an FBI agent assigned to the Behavioral Analysis Unit (BAU) within the Critical Incident Response Group (CIRG). The BAU handles cases involving threatened violence against public officials, and as a program manager, Brown was responsible for assessing such threats. Katherine Schoeneman, the defendant, is a psychologist who had formerly worked with Brown on some threat assessment cases under a contract with CIRG. Schoeneman offered her psychological observations while Brown provided investigative and law enforcement expertise.

February 10, 2013

Defamation of Character: Libel and Slander Law in Virginia

by Lee E. Berlik

Under Virginia law, the necessary elements of the tort of defamation (which includes both libel and slander) are usually expressed as (1) a publication about the plaintiff, (2) of an actionable statement, (3) with the requisite intent. This sounds simple enough, but proper application of these principles is far more complicated than one would expect. This is, in part, due to the fact that the test is circular, as it begs the question of what an “actionable statement” is. It is more useful to think of Virginia law of defamation as encompassing the following eight elements: (1) a factual assertion (as opposed to an expression of opinion); (2) that is false; (3) and defamatory in nature; (4) that is about the plaintiff; (5) and made to a third party; (6) in a setting or context that isn’t privileged; (7) with the requisite degree of fault; (8) that causes actual or presumed damages (generally consisting of financial loss, loss of standing in the community, and/or emotional distress).

Element (6) refers to a defense, not an element of the plaintiff’s proof, but I’ve included it in the list to clarify that an otherwise defamatory statement made in a privileged setting will not be actionable in a court of law. Furthermore, element (8)–damages–is presumed (and need not be proven) in those situations deemed to constitute “defamation per se.”

Libel and slander will be considered “per se” defamatory if it (1) imputes the commission of a crime involving moral turpitude; (2) imputes that the person is infected with a contagious disease which would exclude the party from society; (3) imputes an unfitness to perform the duties of a job or a lack of integrity in the performance of those duties; or (4) prejudices the party in his or her profession or trade. Statements that might qualify as defamation per se include an allegation that one has acted unprofessionally, an attack on a person’s honesty and veracity, a false report of a corporations’ profit and earnings, a statement regarding a company’s inability to pay bills, and a statement suggesting a person is an incompetent businessman.

January 21, 2013

Are False Statements to the Police Immune from Defamation Claims?

by Lee E. Berlik

Judicial privilege (also known as judicial immunity) allows a party to litigation or other judicial proceeding to make statements during the course of the proceeding that would otherwise be considered slanderous or libelous. The Virginia Supreme Court recently held that judicial privilege will also apply to certain statements made in advance of such proceedings where the following conditions are met: (1) the statement is made preliminary to the proposed proceeding; (2) the statement is material, relevant or pertinent to the proceeding; (3) the proceeding is contemplated in good faith and is under serious consideration; and (4) the communication is disclosed only to persons having an interest in the proposed proceeding. The Circuit Court of Loudoun County had occasion to apply the test in Hubbard v. Goehring. (Note: at issue in the Loudoun case was whether absolute judicial immunity applied to false statements made to the police. Such statements will generally be protected by qualified privilege, even if absolute privilege is found not to apply.)

Deanne Hubbard managed Jack and Mary Goehring’s rental properties. Ms. Hubbard and her family also occupied commercial and residential properties owned by the Goehrings. Mr. Goehring filed a criminal theft affidavit against Ms. Hubbard alleging identity theft, fraud, embezzlement and bank fraud. The Goehrings told the Assistant Commonwealth’s Attorney that they intended to file civil charges against Ms. Hubbard. Mr. Goehring found out when Ms. Hubbard would be arrested and arranged for a photographer to photograph the arrest. The pictures were published on the front page of a local newspaper, on the evening news and on YouTube. Ms. Hubbard was acquitted of embezzlement charges, and she and her family brought a defamation action against the Goehrings. The Goehrings contend that statements made to the public prosecutor and police regarding Ms. Hubbard’s alleged criminal activity are subject to the judicial privilege.

Relying on the Restatement (Second) of Torts, the court added a good-faith requirement to the immunity test, finding that in addition to the elements laid out by the Virginia Supreme Court, good faith is required on the part of the private individual bringing the criminal charges and that such good faith must persist throughout the prosecution.

January 9, 2013

Absence of Malice Presumed in Employment Context

by Lee E. Berlik

Emmett Jafari sued the Greater Richmond Transit Company for defamation and retaliation under the Fair Labor Standards Act. Jafari was a Specialized Transportation Field Supervisor for a Virginia company that transported clients enrolled in a state economic program. John Rush, a GRTC driver, told Jafari’s Chief Operating Officer, Eldridge Coles, that (1) he had seen Jafari in a heated discussion with a client in front of her home and (2) when the client boarded the van, she said Jafari had told her, “If you have something to say, say it to my face.” Coles allegedly told Jafari’s supervisor, Von Tisdale, “a customer had complained that Mr. Jafari told her ‘if you have something to say, say it to my face.'” When Jafari was later fired, he sued, alleging Coles’ statement to Von Tisdale was defamatory.

In Virginia, defamation requires (1) a publication, (2) an actionable false statement, and (3) negligence or malicious intent (depending on the circumstances). Statements made between co-employees and employers in matters pertaining to employee discipline and termination enjoy a qualified privilege, which insulates those statements from liability unless they are made with malice or shared with people (including fellow employees) who have no duty or interest in the subject matter. If a defendant makes a statement within the scope of a qualified privilege, then the statement is not actionable, even if false or based on erroneous information. The law presumes absence of malice.

To defeat this privilege, Jafari had to show, with “clear and convincing” evidence, the statements met the common law malice requirement, i.e., that they were said with “some sinister or corrupt motive such as hatred, revenge, personal spite, ill will, or desire to injure the plaintiff; or … made with such gross indifference and recklessness as to amount to a wanton or willful disregard of the rights of the plaintiff.” This he could not do, so the court entered summary judgment in favor of the employer.

January 7, 2013

Defamatory Yelp Review Damaging Your Business? Don’t Expect it to Come Down Any Time Soon.

by Lee E. Berlik

Jane Perez hired Dietz Development to repair her townhome. When Perez became dissatisfied with Dietz’s performance, she fired Dietz and posted negative online reviews on both Yelp and Angie’s List. Her comments not only expressed her dissatisfaction with Dietz’s work but also implied that Dietz was responsible for some jewelry missing from Perez’s home. Dietz sued Perez for defamation in Fairfax County Circuit Court and requested a preliminary injunction ordering her to remove the statements.

Perez opposed the injunction but apparently did not argue that an injunction would be an impermissible “prior restraint” under the First Amendment. The trial judge gave Dietz a partial victory, enjoining any discussion of the missing jewelry and ordering Perez to delete certain misleading statements she had made about a related lawsuit. Perez filed a motion for reconsideration in which she raised the prior-restraint issue, and appealed to the Supreme Court of Virginia shortly thereafter. Remarkably, the Supreme Court vacated the injunction just two days after the petition for appeal was filed and without even giving Dietz an opportunity to respond.

The First Amendment prohibits prior restraints on speech unless publication would threaten an interest more fundamental than the First Amendment itself. Perez argued that Dietz’s reputation as a businessman in the community does not rise to that level of importance. She also argued that although some jurisdictions allow an injunction against comments that have been found false and defamatory after a full trial, injunctions against speech that has not been found to be false and defamatory are never appropriate.

December 21, 2012

Lawyer Claims Huffington Post Defamed Him By Attributing Controversial Article to Him

by Lee E. Berlik

Panamanian lawyer Juan Carlos Noriega has brought a defamation suit in the District of Columbia against the Huffington Post for falsely attributing to him an “offensive” article he claims he had nothing to do with. The article, entitled “The Primacy of the Rule of Law,” (which has since been removed from the site) concerned a “fake vaccination program” that the Central Intelligence Agency ran in order to gather information on Osama Bin Laden. The CIA relied on Dr. Shakeel Afridi to run the vaccination program, and when he was arrested, the United States government called for his release.

The article claimed that the United States’ outrage over Dr. Afridi’s arrest was inconsistent with every nation’s basic commitment to the rule of law, and that the United States’ demand that Afridi be released showed a disregard for Pakistan’s democracy and jurisprudence. The article suggested that Afridi had violated the Hippocratic Oath and that, because of the fake campaign, Pakistani parents had become skeptical of vaccinations and were refusing to immunize their children. The article asserted that thousands of innocent Pakistani children may be crippled for life with polio or die from hepatitis because of the vaccination scheme. A link to the article revealed a short biography and picture of Noriega and listed him as one of “HuffPost’s signature line up of contributors.”

Noriega claims he has never written anything for the Huffington Post. He says he’s never even submitted a comment on the site or created an account. According to the complaint, The Huffington Post did not contact Noriega before publishing the article, and when Noriega’s counsel informed the Huffington Post that he had been a victim of identity theft and asked it to remove the article, the Huffington Post did not respond. Noriega asserts that the Huffington Post maliciously and negligently published the article and attributed to him “highly offensive and defamatory beliefs” concerning terrorism, Pakistan, bin Laden, the U.S. government and the CIA that he does not hold.

December 17, 2012

Internet Defamation Insufficient Basis for Personal Jurisdiction Against Colombia Company

by Lee E. Berlik

Carlos Henriquez and his wife traveled from their home in Georgia to Colombia to seek infertility treatments. They eventually contracted with a surrogate mother who gave birth to twins. A custody dispute arose between the Henriquezes and the surrogate, and a Colombian court awarded custody to the Henriquezes. A Colombian newspaper, El Pais, published articles about the case and placed the articles online where Georgia residents could access them. Henriquez brought a defamation claim against El Pais arguing that the articles were defamatory. El Pais moved to dismiss the claim for lack of personal jurisdiction.

Henriquez contended that El Pais targeted his family and purposefully directed the defamatory statements at Georgia. He argued that the court had personal jurisdiction over El Pais because it published defamatory statements in print and on its web page that were seen in Georgia. Henriquez submitted evidence that the El Pais web page contained advertisements for U.S. companies that transacted business in Georgia, from which El Pais derived revenue.

El Pais argued that the court lacked personal jurisdiction because the advertisements were placed on its site by an ad server owned and operated by Pautefacil.com, a Colombian company. El Pais did not market its own goods but merely disseminated news stories. The district court granted the motion to dismiss and Henriquez appealed.

December 10, 2012

Defamatory Statements to Credit Reporting Agencies Held Not Preempted by FCRA

by Lee E. Berlik

Michelle Bourdelais brought a defamation claim in the Richmond Division of the Eastern District of Virginia against Chase Bank and Chase Home Finance, based on Chase’s alleged reporting of inaccurate information about the status of her mortgage payments to consumer reporting agencies. Chase moved to dismiss the claim, arguing that it was preempted by the Fair Credit Reporting Act. Judge Henry E. Hudson denied the motion, allowing the claim to proceed.

The Fair Credit Reporting Act (“FCRA”) contains two seemingly conflicting sections. Section 1681t(b)(1)(F) appears to preempt all state laws regarding the liability of credit reporting agencies, whereas § 1681h(e) preempts only certain types of common law actions and then only under certain circumstances. The court noted that although the Fourth Circuit has not addressed the issue, seven of nine district courts in the Fourth Circuit have reconciled this conflict by using the “statutory approach” and holding that §1681t(b)(1)(F) only applies to state statutory claims and § 1681h(e) only addresses state common law claims.

Bourdelais argued that the preemption provisions did not apply at all because Chase did not act as a furnisher of information to consumer reporting agencies and Kroll Factual Data, the party who provided Bourdelais’ credit report, was not a consumer reporting agency (“CRA”) within the meaning of the FCRA. The court rejected this argument and noted that the FCRA definitions of “furnisher” and “consumer reporting agency” clearly include Chase and Kroll.

December 5, 2012

How to Lose Your Defamation Case in Three Easy Steps

by Lee E. Berlik

First, don’t hire a lawyer. (What do lawyers know about defamation law, anyway?) Second, refuse to comply with the court’s orders and local rules. Finally, file a whole bunch of frivolous and nonsensical motions, such as a “Motion for Declaration All Rulings & Judgments Be Rendered Null & Void,” a motion against opposing counsel for engaging in “felonious conspirator tactics,” and a “Motion to Declare All Your Base Are Belong to Us.” With the exception of the “all your base” example, a defendant recently tried all of these tactics in North Carolina federal court and came away with a judgment against him that included punitive damages.

William Mann, a member of the Professional Golfers Association Hall of Fame, acquired a North Carolina country club but then declared bankruptcy and moved to South Carolina. M. Dale Swiggett sent a letter to hundreds of recipients accusing Mann of fraud and crimes and claiming Mann left North Carolina after declaring bankruptcy and paid cash for his South Carolina house. Swiggett then sent a letter to the judge who had presided over Mann’s bankruptcy, accusing Mann of covering up “sludge spreading and spills.”

Mann sued Swiggett in the Eastern District of North Carolina for libel, seeking $2 million in compensatory damages and $2 million in punitive damages for injury to his reputation and livelihood. Swiggett, acting pro se, responded by overloading the court’s docket with numerous groundless motions, inducing the court to strike his Answer as a sanction. After entering summary judgment in Mann’s favor, the only remaining issue was the amount of damages.