Defamatory Meaning Category Archives — Page 2 of 6 — The Virginia Defamation Law Blog Published by Reston Defamation Attorney — Virginia Slander & Libel Lawyer

March 7, 2021

Implied Undisclosed Facts as Basis for Defamation Claim

As a general rule, statements of opinion are not actionable as defamation. It’s also true, however, that indirect implications from a statement can form the basis of a defamation claim. When a person prefaces a statement with “in my opinion” or “I firmly believe,” it has no effect on whether the statement carries defamatory implications or innuendo. If a speaker expresses an opinion under circumstances that would cause a reasonable listener to understand that the opinion is based on the speaker’s knowledge of undisclosed facts, that “opinion” can be treated as an implied assertion of fact. And if that factual assertion isn’t true and conveys a defamatory meaning about someone, defamation liability may arise.

This isn’t really an exception to the rule that you can’t sue someone for defamation based on an expression of opinion. Pure opinions remain protected by the First Amendment. The question is whether a reasonable listener or reader would infer from a particular statement (whether couched as an opinion or otherwise) that the speaker or writer knows certain facts, unknown to the audience, which support the opinion and are detrimental to the reputation of the person about whom the statement is made. This is going to depend heavily on context, the identity of the parties, and the specific words used.

December 9, 2020

If the Lie Is Not Important, It’s Not Defamatory

by Lee E. Berlik

The law doesn’t require everyone to be completely honest in all facets of their day-to-day lives. Some lies can form the basis for a legal cause of action for defamation, fraud, business conspiracy, or other claims, but not all lies justify legal action. Some lies are more harmful than others. If someone has lied about you to other people and you are considering whether to sue for defamation, ask yourself this: has your reputation really been affected? If nobody cares about the factual error, or they respond to it with a “so what?” or a shoulder shrug, there’s a good chance the misrepresentation would not be considered defamatory by a Virginia judge.

To be considered legally actionable as libel or slander, a false statement must really sting. Meaningless insults are insufficient. Minor misrepresentations that can be easily shrugged off are insufficient. False statements about you that no one (but you) considers important are not going to cut it. What the court will be looking for are statements with defamatory meaning. Statements meeting this test are those that would tend to cause a person to be shunned from civilized society. They are statements that would tend to cause people to not want to have any personal or business dealings with the subject of the statement. People who have been legitimately defamed are those who have been exposed to public scorn and contempt as a result of false information circulating about them.

August 29, 2020

Virginia’s Fair-Report Privilege

by Lee E. Berlik

In Virginia, the right of the media to report freely and fairly on the operations of the government is sacrosanct. Reporters and news organizations that report on government activities are shielded from defamation claims by a “fair report privilege” that applies so long as the publication is a “fair and substantially correct statement of the transcript of the record.” (See Alexandria Gazette Corp. v. West, 198 Va. 154 (1956)). The privilege protects “press reports of official actions or proceedings, so long as the report was accurate and either complete or fairly abridged.” (See Chapin v. Knight-Ridder, Inc., 993 F.3d 1087, 1097 (4th Cir. 1993)). Everyone has a right of access to public records, and the fair report privilege makes it easier for the media to communicate the information contained therein to the public so that the government can be held accountable.

Some courts view the fair report privilege or “reporter’s privilege” as an exception to the republication rule. Normally, a person who repeats a defamatory statement is liable for republishing it, just as if he or she were the original speaker. Where a reporter repeats a defamatory statement made at a proceeding covered by the fair report privilege, however, no republication liability will attach provided the report is a fair characterization of what was originally said. If a media account of a government proceeding is fair and accurate, the publisher will be protected even if statements made at the proceeding and repeated in the publication were false and defamatory.

November 9, 2019

The Small-Group Exception to the “Of and Concerning” Test

by Lee E. Berlik

To be actionable in Virginia, defamatory statements must be about the person who is filing the lawsuit. A plaintiff can’t successfully bring a defamation action based on a false statement that doesn’t expressly or impliedly refer to him or her, and in a manner clear enough to communicate that reference to others. This is the “of and concerning” element that every action for libel or slander requires. When the false statement at issue concerns a group of people rather than an individual, a question arises as to whether the group’s members have been defamed. The general rule is that statements that broadly malign an organization as a whole do not necessarily defame the organization’s individual members. However, when the organization is small enough, the small-group theory postulates that a defamatory statement about the small group could be reasonably expected to harm the reputations of every individual member, whether or not they are identified in the statement, and that such statements should be treated as “of and concerning” each individual group member.

If a statement’s “language…is directed towards a comparatively small or restricted group of persons, then any member thereof may sue.” (See Ewell v. Boutwell, 138 Va. 402, 410 (1924)). How small does the group have to be to qualify for the small-group exception to the of-and-concerning requirement? That’s anyone’s guess. Courts around the country typically apply the doctrine to groups of up to around 25-50 members, but each case is going to be different. Courts will look to factors such as the size of the group, whether the statement attacks the group as a whole or some subset thereof, and whether the group is prominent in the community in which the statement was published. The key issue is whether a reasonable person hearing the defamatory statement about the group would likely interpret it as referring to all its individual members.

May 27, 2019

Even Vague Suggestion of Criminal Conduct May Be Defamatory Per Se

by Lee E. Berlik

Defamatory statements falling into certain categories deemed particularly damaging to one’s reputation are considered defamatory “per se” and may be compensable even without proof of reputational harm. False accusations of morally reprehensible criminal activity are a common example of this “per se” form of defamation. As the Virginia Supreme Court has put it, defamatory words will be considered defamation per se when they “impute to a person the commission of some criminal offense involving moral turpitude, for which the party, if the charge is true, may be indicted and punished.” (Tronfeld v. Nationwide Mut. Ins. Co., 272 Va. 709, 713 (2006)). One thing that remains unclear, however, is the degree of specificity required before a statement will be deemed defamatory per se. Must the statement describe specific conduct, or is it sufficient to merely characterize unspecified conduct as criminal in nature? Must a specific criminal offense be identified? There doesn’t yet seem to be a consensus on these questions. The latest Virginia court to deal with them allowed a case to proceed on the basis of very vague allegations.

Here’s what happened in the case of Frances J. Belisle v. Laura Baxter, according to the opinion. Frances brought two counts of defamation per se against Baxter, a police officer with the City of Hopewell, arising out of her arrest at Hopewell High School for disorderly conduct. The police were at the high school at its request to provide security at a school event in which Frances’ minor daughters were participants. They set up a barricade of tables to form a controlled entry point to a hallway in the school. When Frances approached the tables with her 9-year-old daughter, seeking to escort her to a classroom, she was initially told that only the daughter could enter. The police eventually decided it was OK to allow the parent to come in, but when Frances later observed Officer Baxter stopping another mother from entering the hallway, she decided to intervene.

May 17, 2019

Defamation By Implication Is an Intentional Tort

by Lee E. Berlik

Whether a particular tort is deemed intentional, as opposed to merely negligent, can have far-reaching implications. Intentional torts and negligent torts are treated very differently when it comes to things like insurance coverage, sovereign immunity, and recoverable damages. Defamation is one of those torts that cannot be easily categorized, as the degree of intent required to hold someone liable for defamation differs depending on the circumstances. If the plaintiff is a public figure, he will have to prove the defendant intentionally made a false statement, or at least made the statement with a high degree of awareness of its probably falsity. Private-figure plaintiffs, on the other hand, need only demonstrate a level of culpability akin to negligence, a standard that does not require a showing of intent. States differ in their treatment of defamation-by-implication cases, but in Virginia, the speaker must have intended to make a defamatory implication to be held liable.

Some would argue that defamation by implication should only be deemed an intentional tort in those cases where malice is required. Most court opinions involving claims of implied defamation focus solely on whether the statement implies a defamatory meaning to the reasonable listener or reader, without regard to the defendant’s subjective intent in making the statement. According to Section 563 of the Restatement (Second) of Torts, “the meaning of a communication is that which the recipient correctly, or mistakenly but reasonably, understands that it was intended to express.” If the requisite level of intent for defamation liability is mere negligence (the usual standard in cases not involving public figures or officials), it might make sense to hold the speaker liable for a reasonable defamatory inference even if that inference was not the intended meaning. Since the Virginia Supreme Court decided Pendleton v. Newsome, however, it has been clear that plaintiffs seeking to hold defendants liable based on a defamatory implication must demonstrate not only a defamatory inference but that the defendant intended to communicate that inference.

January 30, 2019

Rhetorical Hyperbole Is Not Defamation

by Lee E. Berlik

Under Virginia law, rhetorical hyperbole is not defamatory. Rhetorical hyperbole refers to statements that–while they may seem at first glance to express factual assertions about a person–cannot reasonably be interpreted as stating actual facts. To prove defamation, a plaintiff needs to show falsity; rhetorical hyperbole does not literally assert facts, so it is not susceptible of being proven true or false. Therefore, courts treat is as non-actionable opinion.

Another reason rhetorical hyperbole is not considered defamatory is that the law encourages “imaginative expression” in public debate. In Milkovich v. Lorain Journal Co., the Supreme Court noted that rhetorical hyperbole has “traditionally added much to the discourse of our Nation.” (See 497 U.S. 1, 20 (1990)).

January 5, 2019

To Determine Whether an Insult Is Defamatory, Ask the Human Race

by Lee E. Berlik

When the Virginia Citizens Defense League, a gun-rights organization, sued Katie Couric for defamation back in 2016, the two big issues from a legal perspective were (1) whether the edited video of the VCDL members conveyed a false statement of fact, and (2) if so, whether that false message carried a defamatory meaning sufficient to support a cause of action for defamation. When I first wrote about the case the day after it was filed, I devoted most of my blog post to the issue of whether video and still images can support the falsity element of a defamation claim (they can). Now that the case has completed its journey through the legal system, I thought I would revisit this case, this time focusing more on the second issue: that of defamatory meaning.

At the trial level, the court answered both questions in the negative, finding that the video was “not false” and that, even if it were false, it lacked sufficient defamatory meaning to survive a motion to dismiss. On appeal to the Fourth Circuit, the Court of Appeals held as I predicted it might: it overruled the trial court’s determination that the video was not false, but nevertheless affirmed the dismissal of the case because that falsity did not carry defamatory meaning sufficient to state a claim for defamation under Virginia law. What surprised me about the ruling was not the result but how little was written in the opinion about whether the law should recognize a defamation claim based on a false statement deemed despicable by a large segment of society, but not by the majority of Americans. This seemed to be a good case for the court to grapple with that issue, as the degree to which VCDL members’ reputations suffered among viewers of the documentary likely varied according to viewers’ opinions on gun ownership. Instead, the court held (in a footnote, no less) that defamatory meaning should be measured according to “the common estimation of mankind” without consideration of variations that may exist among smaller segments of the populace.

August 8, 2018

Conspiracy Theorists: Defamatory Meaning Depends on Who’s Talking

by Lee E. Berlik

The Internet is full of morons. If an Internet troll who clearly has no idea what he or she is talking about posts false statements on social media about another person, the effect on the reader is different than if the same statement had been written by an authoritative figure and circulated to the public in a formal news release. Readers would tend to believe the assertions made in the authority figure’s formal statement, and tend to dismiss the troll’s statement as nothing more than meaningless Internet noise. In actions for libel and slander, the perceived knowledgeability and credibility of the speaker plays an important role in the determination of whether defamatory meaning has been conveyed by a particular statement.

The Alex Jones lawsuit comes to mind. Alex Jones is the host of InfoWars and an extremely popular online conspiracy theorist. He has claimed that the 2012 shooting at Sandy Hook Elementary School was an elaborate hoax, complete with adult and child actors, invented by government-backed “gun grabbers.” Many of his followers apparently believed his claims and have been harassing the victims’ families. Recently, several of the families have filed defamation lawsuits against Jones, arguing that he “persistently perpetuated a monstrous, unspeakable lie: that the Sandy Hook shooting was staged, and that the families who lost loved ones that day are actors who faked their relatives’ deaths.”

April 18, 2018

What’s An Opinion?

by Lee E. Berlik

The First Amendment to the United States Constitution protects the right to express one’s opinions without fear of defamation lawsuits or other punishment. If you had a bad experience at a local restaurant, you are free to post a negative review on Yelp, Google, or some other consumer-review site and tell the world exactly what you think of the place. The restaurant may not appreciate the effect of your review on its average “star rating,” but it won’t be able to sue you for defamation (not successfully, anyway) if all you did was express your constitutionally-protected opinions. But what are those, exactly?

Distinguishing opinions from statements of fact is not as simple as it sounds, and in many cases, judges and scholars will reach opposite conclusions. For example, a common accusation that gets thrown around a lot is “scam artist” or “scammer.” Is that a factual assertion or an opinion? It’s hard to say without knowing more context. Is the declarant using the term to accuse someone of being “grossly unfair” (an opinion) or is he saying that actual fraud is taking place? Suppose someone writes online that Gatorade’s marketing campaign is a “scam” because Gatorade doesn’t really quench thirst as well as plain water. Contrast that with a statement accusing a local accountant of scamming customers out of hundreds of dollars by manipulating their tax returns. To “scam” someone means different things in different contexts.