Damages and Remedies Category Archives — The Virginia Defamation Law Blog Published by Reston Defamation Attorney — Virginia Slander & Libel Lawyer

October 21, 2020

Prior Restraints of Defamatory Speech

In Virginia, injunctions are considered an extraordinary remedy and, due to First Amendment concerns, are generally not available to enjoin a person from speaking. Known as “prior restraints,” injunctions against defamatory speech are disfavored and bear a heavy presumption against validity. The Supreme Court has written that “a free society prefers to punish the few who abuse rights of speech after they break the law than to throttle them…beforehand.” (See Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 559 (1975)). There are exceptions, however, such as (a) when a defendant’s defamatory speech was uttered in connection with the commission of a separate tort, (b) when a defendant engages in repeated defamation, or (c) when the speech has already been adjudicated to be defamatory.

Although neither the Virginia Supreme Court nor the Fourth Circuit has had the opportunity to consider whether a prevailing defamation plaintiff may obtain an injunction prohibiting the defendant from repeating the speech adjudicated to be defamatory, most courts around the country approve of the practice, reasoning that any other rule “would make an impecunious defamer undeterrable.” (McCarthy v. Fuller, 810 F.3d 456, 462 (7th Cir. 2015)). Earlier this year, the Eastern District of Virginia followed the trend and granted an injunction to restrain the defendant from repeating certain statements held to be defamatory.

September 25, 2019

Seek Remittitur if Jury’s Award Is Grossly Excessive

by Lee E. Berlik

As I wrote on this blog last month, if a trial judge gives the jury faulty instructions in a defamation case regarding liability issues, the parties are entitled to a new trial. Juries are there to weigh evidence and determine the facts, not decide what the law should be. Today, I’m writing about the appropriate remedy when a jury awards the plaintiff an outrageously large sum of monetary damages after having been instructed properly regarding the law. Sometimes juries will understand what the trial judge has asked them to do but for reasons such as passion, prejudice, sympathy, or simply because of a rush to reach a consensus and go home, decide to award an amount of money having no bearing on the injuries actually suffered. When this happens, the unlucky defendant can ask for remittitur.

“Remittitur” is a process by which the trial court orders a new trial unless the plaintiff accepts a reduction in an excessive jury award. Compensatory damages must bear a reasonable relationship to the damages disclosed by the evidence. Although a judge may not arbitrarily substitute her opinion for that of the jury, she has both the power and the duty to correct a verdict so excessive as to “shock the conscience” of the court. (See Hogan v. Carter, 226 Va. 361, 372 (1983)). Under Virginia Code § 8.01-383.1, a trial court may give the plaintiff the option of remittitur of the excessive verdict in lieu of a new trial, permitting him or her to accept judgment for a reduced sum. In setting this reduced amount, the court should consider factors in evidence relevant to a reasoned evaluation of the damages, and set the damages at an amount that bears a “reasonable relation to the damages disclosed by the evidence.” (See Bassett Furniture, 216 Va. 897, 911-12 (1976)).

February 22, 2019

Limitations on Jury Awards in Defamation Per Se Cases

by Lee E. Berlik

In a defamation per se case, the jury will be instructed that it may presume damages and award a monetary recovery to the plaintiff even in the absence of any evidence of specific harm caused by the defamatory statements. This goes against the general rule that juries cannot award damages unsupported by the evidence. What’s not entirely clear, however, is how much the jury is permitted to award in such a case. Most courts seem to be of the mind that whatever the jury decides is appropriate to award will be permissible in cases of defamation per se. But suppose that number is vastly out of proportion to the gravity of the offense? If the defendant falsely accused the plaintiff of stealing a pack of gum, can a jury decide to award $500 million to the plaintiff, even in the absence of any evidence of harm to reputation? Well, yes and no. In defamation per se cases, the jury can award whatever amount it decides is warranted–even if there is no evidence at all of actual damages–but if the award is especially unconscionable, the court can strike it down.

Virginia Model Jury Instruction 37.105 (which applies in defamation cases involving presumed damages) simply says “the plaintiff is entitled to recover compensatory damages without any proof of actual or pecuniary injury.” There is no mention of any limits on the amount the jury might award. So as far as the jury is concerned, the sky’s the limit. In Poulston v. Rock, 251 Va. 254, 261 (1996), the court wrote that “even in the absence of any evidence of pecuniary loss, the damages which the injured party is entitled to recover may be substantial.”

March 5, 2018

Online Stalking vs. Internet Defamation

by Lee E. Berlik

Harassment and bullying can take place in many different forms. Sometimes the conduct is actionable in a court of law, and sometimes it isn’t. Sometimes it involves defamation of character, whereas other times the harassment takes the form of electronic stalking. Before scheduling an appointment to speak with a lawyer, you should know the difference. In a nutshell: if the bad actor’s harassing activity consists primarily of spreading false rumors about a person on social media, then we’re most likely dealing with the law of defamation. Conversely, if the harassment consists of persistent threats of sexual assault or physical bodily harm, you’re dealing with the law of criminal stalking. Defamation occurs when a person publishes an “actionable statement” with the requisite intent. Stalking occurs when a person “on more than one occasion engages in conduct directed at another person with the intent to place, or when he knows or reasonably should know that the conduct places that other person in reasonable fear of death, criminal sexual assault, or bodily injury to that other person or to that other person’s family or household member.” (See Va. Code § 18.2-60.3). I write about defamation law all the time, so the rest of this post will focus on what stalking is and how it is different.

A defendant commits the crime of stalking when the following elements are met:

The defendant directed his or her conduct toward the victim on at least two occasions;
The defendant intended to cause fear or knew or should have known that his or her conduct would cause fear; and
The defendant’s conduct caused the victim to experience reasonable fear of death, criminal sexual assault, or bodily injury.

September 22, 2017

A Guide for Revenge Porn Victims

by Lee E. Berlik

Revenge porn is generally defined as a form of online harassment in which sexually explicit photographs or videos of another individual (usually a former partner) are either taken or shared with others without the consent of the person shown in the images. Perceived “revenge” is sometimes the motive, but not always. Sometimes images are circulated merely for titillation or profit. For this reason, some prefer to use terms like “nonconsensual pornography” or “sexual cyberharassment.” Whatever you call it, if images are shared without the consent of the subject, the results can be devastating to victims and can lead to public degradation, social isolation, and professional humiliation.

Revenge porn laws differ from state to state. Virginia law allows victims to sue for damages and reimbursement of attorneys fees, and makes several forms of revenge porn punishable as a crime. Virginia law is not as tough on revenge porn as some other states, however. In Virginia, the dissemination of nude photos taken with the subject’s consent (e.g., selfies) will generally not be punishable under Virginia’s revenge-porn statutes absent an intent to coerce, harass, or intimidate. So while motive usually doesn’t matter much from the perspective of the victim, it can make all the difference in terms of legal remedies available.

May 25, 2017

Can Small Business Owners Sue When Their Companies Are Defamed?

by Lee E. Berlik

As a small-business owner, can you sue for defamation personally if someone makes a false and damaging statement about your business? The answer will depend to a large degree on the size of your company and the extent to which the public views you and your company as one and the same. The determining factor is whether a false statement made only about your business (and not about you personally) nevertheless tends to degrade your personal reputation in the eyes and ears of those who hear the statement. If you own XYZ Company and XYZ has 1000 employees, a statement falsely accusing XYZ of producing a defective widget will not necessarily lower you as an individual in the eyes of the community. On the other hand, if XYZ Company is a single-member LLC with no employees or contractors on staff, the very same statement might be deemed to have the “sufficient nexus” that Virginia law requires to make the statement actionable by the business owner individually (as well as the business itself).

Under Virginia law, defamation requires (1) publication of (2) an actionable statement with (3) the requisite intent. What we’re talking about here is the second element of that test, which requires among other things that the statement at issue be “of and concerning” the person or entity bringing the lawsuit. To win a defamation case, you have to show that the statement at issue was intended to refer to you specifically and people who heard it understood it as such. A preliminary question for the judge is whether a reasonable person hearing or reading the statement could conclude that the defamatory statement was essentially “about” the plaintiff, even if the plaintiff is not mentioned by name in the statement.

March 16, 2017

No Discovery Rule for Defamation Claims in Virginia

by Lee E. Berlik

The statute of limitations for defamation actions in Virginia is one year. This means that if somebody libels you on the Internet, you have just one year from the date of the defamatory post in which to file a lawsuit. A question I get asked a lot is, “what if someone defamed my character several years ago but I just found out about it last week?” Here in Virginia, the answer (I’m sorry to say) is: it doesn’t matter. The statute of limitations begins to run when the injury occurs, not when you discover you’ve been injured, and courts have held that when someone defames your character, your reputation suffers even if you don’t know about it. Although it’s certainly true that you won’t become emotionally upset or embarrassed about false statements made about you behind your back, the fact remains that emotional distress is not a necessary element of a cause of action for defamation, and statues of limitation begin to run once the elements of the claim have been met. When a person’s reputation is unfairly attacked with false statements, the injury is immediate: people who know you and who read the statement and believe it will think less of you as a person, regardless of whether you know about it and regardless of whether you have suffered any emotional distress because of it.

Certain causes of action in Virginia–like fraud–are subject to a “discovery rule,” meaning that the cause of action will not accrue, and the statute of limitations will not begin to run, until the alleged misconduct is either discovered, or, by the exercise of due diligence, reasonably should have been discovered. Defamation claims, however, do not enjoy the benefit of the discovery rule, so the limitations period begins to run as soon as an actionable statement is published with the requisite intent. (See, e.g., Jordan v. Shands, 500 S.E.2d 215, 218 (Va. 1998) (holding that “when an injury is sustained in consequence of the wrongful or negligent act of another and the law affords a remedy, the statute of limitations immediately attaches.”)). Illustrating this point is the case of Robert L. Matthews v. Tracy M. Gee, decided March 9, 2017, by the Eastern District of Virginia.

September 28, 2015

Invasion of Privacy in Virginia

by Lee E. Berlik

The right of privacy has been defined as the right to be left alone. After Supreme Court Justice Louis D. Brandeis co-authored an influential article in the Harvard Law Review in 1890, states across the country began to formally recognize and protect invasions of privacy rights. Invasion of privacy came to be categorized into four distinct types: (1) the unreasonable “intrusion upon seclusion” of another person, (2) publicity that unreasonably places another person in a “false light” before the public, (3) the unreasonable publication of another’s private life, and (4) misappropriation of another’s name or likeness.

If you’re reading this, there’s a good chance you’re a Virginia resident and believe someone has invaded your privacy. Before you get too excited about all the different causes of action you might have grounds to pursue, let me share with you the harsh reality that–with one narrow exception–Virginia recognizes none of these claims. Virginia does have a statute providing a remedy for a very limited and specific type of misappropriation of another’s likeness, as well as a law addressing computer invasion of privacy, but there is no cause of action in Virginia for “invasion of privacy” as there is in many other states.
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March 16, 2015

Make the Online Harassment Stop

by Lee E. Berlik

Libel and slander are considered “torts.” The law of torts is designed to provide a remedy that will “make the plaintiff whole” to the fullest extent possible. Usually, we’re talking about money: how much money would it take to fully compensate the plaintiff for the harm caused caused to the person’s reputation by the defamation? What is the value of the reputation and what amount would fairly compensate the plaintiff for his or her emotional anguish? Often, however, plaintiffs are less interested in money than in halting or removing the damaging statements (especially if they were published online and continue to reach readers), or forcing the defendant to make a public retraction. This latter form of relief–asking the court to order someone to refrain from making certain statements or to perform an affirmative act–is considered “equitable” in nature, basically meaning that it will be guided by vague principles of fairness. A court order granting this relief is called an injunction. It’s almost impossible to get.

One might think that if the purpose of tort law is to provide plaintiffs with a complete remedy for the harm, an injunction would be a logical choice because it has the capacity to prevent harm from happening in the first place. Moreover, many affected by online defamation take the position that no amount of money can truly restore a damaged reputation or bring an end to the emotional distress caused thereby. But that’s not how the legal system works. Virginia law (like the law in most states) has a strong preference for money damages over injunctive relief. If the court finds that an award of money will fully compensate the plaintiff, it will not issue an injunction as a general rule. This means that unfortunately, there is often a huge disconnect between what victims of online defamation want and what the court is willing to give them.
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January 19, 2015

The Statute of Limitations for Defamation Actions

by Lee E. Berlik

Under the current statute, suits in Virginia for libel, slander, or “insulting words” can only be brought within one year from the time of publication. Earlier this month, delegate Dave Albo filed House Bill No. 1635, proposing that the Commonwealth increase the limitations period to two years, and providing further that in cases involving Internet defamation by anonymous tortfeasors, the statute of limitations be suspended (or “tolled”) upon a motion and showing of good cause. If the bill passes, it will make it a lot easier to identify and bring to justice those persons who use the Internet to conceal their identities while unleashing a barrage of false and harmful statements about another individual or business.

Statutes of limitation have been debated for hundreds of years. In a law review article written over 100 years ago, Oliver Wendell Holmes, Jr. asked, “what is the justification for depriving a man of his rights, a pure evil as far as it goes, in consequence of the lapse of time?” In other words, why have statutes of limitation at all? Shouldn’t every wrong have a remedy? There are some who feel that claims should be resolved on their merits regardless of when they are brought, whereas others argue that untimely claims should be forever extinguished. Most states have reached a consensus that defamation claims should be limited to one or two years, primarily due to concerns about First Amendment principles and a desire to avoid the chilling of free speech.
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