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

April 7, 2023

The Big Issue in Dominion v. Fox Has Already Been Decided

The jury trial in the libel and slander case of Dominion Voting Systems v. Fox News Network is now less than two weeks away. The consensus among defamation law experts seems to be that the “big issue” in this case is whether Fox acted with “actual malice,” a requirement established by the seminal First Amendment case of New York Times v. Sullivan back in 1964. Public figures can’t win defamation suits unless they can prove the defendant made a false statement about them with actual malice, generally defined as knowledge of falsity or, at a minimum, “reckless disregard” for the truth, which is the equivalent of a high degree of awareness that the statement at issue is probably false. In most cases, that’s a very difficult thing to prove, and many defamation cases fail due to an inability of the plaintiff to prove actual malice. Dominion’s case against Fox, however, is anything but ordinary. From my perspective, the only real chance Fox had of winning this case at the trial level was not to convince the jury that it failed to act with actual malice (an unlikely prospect) but rather to convince the jury that it was merely broadcasting newsworthy allegations made by others and that it was not necessarily endorsing those allegations. In a recent pretrial ruling, however, the court found that a reasonable jury could only conclude that Fox did, in fact, endorse the conspiracy theories and adopt the accusations against Dominion as its own. The jury won’t be allowed to even consider the issue. That means this case is essentially done. Dominion wins. The only question is how high the judgment amount will be.

Prior to the court’s recent ruling on Dominion’s motion for summary judgment, Fox had a glimmer of hope. After all, Dominion is the party with the burden of proof, not Fox. It is Dominion that needs to prove that the statements made about Dominion on Fox’s broadcasts were false and that Fox is responsible for making them, even if the statements were made only by guests on Fox programming. Even with all the media coverage about those behind-the-scenes text messages by Fox hosts in which they reveal their true feelings about the outlandish and unsupported accusations against Dominion being made by the likes of Sidney Powell and Mike Lindell, at least they could argue to the jury that when a member of the President’s legal team makes a public accusation that a manufacturer of voting machines was complicit in a giant scheme to flip votes and steal an election, that is a newsworthy event that Fox should cover, regardless of whether the accusation is true or false; the accusation itself is news. Sadly for Fox, that ship has sailed. The court has already entered partial summary judgment establishing not only that the statements about Dominion made by Fox guests were false, but that Fox is responsible for republishing those statements as if they were Fox’s own accusations against Dominion.

December 29, 2021

Retweets Do Not Extend the Statute of Limitations

by Lee E. Berlik

The statute of limitations for defamation claims in Virginia is just one year from the date of publication. “Publication” in this context refers to the communication of the defamatory statement to a third party. A person who repeats a defamatory statement originally made by someone else can sometimes be held liable for republishing the statement. That republication would constitute a new defamation claim and trigger a new one-year period under the statute of limitations. Republication liability, however, generally requires some evidence that the person repeating the defamation is vouching for the statement’s accuracy or adopting it as his/her own. Merely sharing someone else’s defamatory statement, without adding to it in some way or directing it to a new audience, will usually not give rise to defamation liability and will therefore not extend the statute of limitations beyond one year from the original publication.

In the Lokhova v. Halper case I wrote about last year, the plaintiff sued The New York Times and other publications roughly two years after they published articles about her that she believed were defamatory. She argued that her claim was not time-barred because several people had tweeted links to the articles in question within the 12-month period prior to her filing of the lawsuit. The court rejected her argument and dismissed the case, finding that merely sharing an article with others does not necessarily amount to republication. The article was already on the internet. Re-tweeting it, opined the court, is the equivalent of sharing a hard-copy book or magazine with another person. Doing so does not amount to a new publication that would trigger a new one-year period within which a defamation claim might be brought.

April 7, 2020

Virginia Judge Finds Amber Heard Republished 2016 Accusations with 2018 Op-Ed

by Lee E. Berlik

Most of the attention being paid to Johnny Depp’s defamation suit against Amber Heard has been about the fact he brought it in Virginia rather than in California where both of them live. Most speculate Depp chose Virginia due to the fact its anti-SLAPP law is more hospitable to celebrities and public figures than California’s. He has already been rewarded with a ruling permitting the case to remain in Virginia even if all potential witnesses and evidence are located in California. If that ruling wasn’t enough to lead to the supposition that this case is destined to be decided by the Virginia Supreme Court rather than the Circuit Court of Fairfax County, we now have another interesting ruling in an area in which there’s not a lot of controlling precedent: what it takes to “republish” a defamatory statement and thereby re-start the running of the one-year statute of limitations. That last time Virginia saw a controversial ruling involving the republication doctrine was in Eramo v. Rolling Stone, which was settled shortly after it was appealed. If I had to guess, I would predict that the next Virginia Supreme Court opinion dealing with republication is going to be Depp v. Heard (or, rather, Heard v. Depp).

For those not already aware, Johnny Depp is suing his ex-wife, actress Amber Heard, for an op-ed she wrote for The Washington Post at the end of 2018. The article, entitled “Amber Heard: I spoke up against sexual violence—and faced our culture’s wrath. That has to change,” does not identify Depp by name but, according to Depp, nevertheless implied to readers that Depp is a domestic abuser. In particular, he took issue with the following statements: (1) “I spoke up against sexual violence—and faced our culture’s wrath.” (2) “Then two years ago, I became a public figure representing domestic abuse, and I felt the full force of our culture’s wrath for women who speak out.” (3) “I had the rare vantage point of seeing, in real time, how institutions protect men accused of abuse.” and (4) “I write this as a woman who had to change my phone number weekly because I was getting death threats. For months, I rarely left my apartment, and when I did, I was pursued by camera drones and photographers on foot, on motorcycles and in cars. Tabloid outlets that posted pictures of me spun them in a negative light. I felt as though I was on trial in the court of public opinion—and my life and livelihood depended on myriad judgments far beyond my control.” The Fairfax County Circuit Court held that with the exception of statement #4, these statements were sufficient to imply to readers that Depp is a domestic abuser, considering the couple’s highly publicized divorce in 2016. Key to this conclusion was the court’s determination that the 2018 op-ed amounted to a republication of Heard’s direct accusations against Depp back in 2016.

March 29, 2020

How Republication Doctrine Affects Single-Publication Rule

by Lee E. Berlik

Under the single-publication rule, a defamatory statement posted online will be treated as a single publication, made at the time of posting, regardless of when and how many people actually view the content. Without such a rule, Virginia’s one-year statute of limitations would be rendered meaningless, because a new cause of action would arise each time a new person clicked a link leading to defamatory content, even if that were to occur 10 or 20 years from the date the material was originally uploaded. At the same time, however, Virginia law imposes liability against those who “republish” a defamatory statement, even if republication occurs after the statute of limitations has run on the original statement. When pursuing libel remedies for a statement uploaded to the internet over a year ago, consider whether the statement has been republished by anyone within the past 12 months.

This approach was tried, albeit without success, by the plaintiff in Svetlana Lokhova v. Stefan A. Halper. Ms. Lokhova is a Russian-born British historian and author whose work has focused on the Soviet intelligence service. She had some contact with former National Security Adviser Michael Flynn back in 2014–minimal contact, according to the complaint. She says she met him briefly at a dinner in England and exchanged only a few emails afterwards. Various press accounts in 2017 noted that certain individuals had expressed concern upon learning that the head of the Defense Intelligence Agency appeared to have a friendly relationship with a Russian woman with alleged ties to Russian intelligence–surmising among other things that such a connection could make Flynn susceptible to extortion. One example cited in the complaint is this passage from a New York Times article:

The informant also had contacts with Mr. Flynn, the retired Army general who was Mr. Trump’s first national security adviser. The two met in February 2014, when Mr. Flynn was running the Defense Intelligence Agency and attended the Cambridge Intelligence Seminar, an academic forum for former spies and researchers that meets a few times a year. According to people familiar with Mr. Flynn’s visit to the intelligence seminar, the source was alarmed by the general’s apparent closeness with a Russian woman who was also in attendance. The concern was strong enough that it prompted another person to pass on a warning to the American authorities that Mr. Flynn could be compromised by Russian intelligence, according to two people familiar with the matter.

January 21, 2019

Effect of Foreseeable Republication on Liability of Original Defamer

by Lee E. Berlik

When a defamatory statement is republished by another person, that person may be held liable to the same extent as the original defamer. I recently wrote about liability for rumor-mongering and focused on the potential liability of the person spreading rumors heard from another source. This month, I want to focus on the potential liability of the source of the defamatory statement, particularly when the statement is made to another under circumstances that make it highly likely the defamatory statement will be shared with a larger audience.

The general rule in Virginia is that the original publisher of a defamatory statement will be liable for republication if repetition of the statement was foreseeable as the natural and probable consequence of the original publication:

It is well settled that the author or originator of a defamation is liable for a republication or repetition thereof by third persons, provided it is the natural and probable consequence of his act, or he has presumptively or actually authorized or directed its republication. This is based upon the principle that such republication constitutes a new cause of action against the original author. However, the original author is not responsible if the republication or repetition is not the natural and probable consequence of his act, but is the independent and unauthorized act of a third party.

Weaver v. Beneficial Fin. Co., 199 Va. 196, 199 (1957). (Note: This rule generally does not apply to media defendants such as newspapers and magazines, as holding them liable for anticipated republication would result in an endless re-triggering of the statute of limitations. See id. at 200).

November 26, 2018

Republication By Spreading Rumors or Reporting What Others Have Said

by Lee E. Berlik

Republication of a libel may be grounds for defamation liability. (See Restatement (Second) of Torts § 578; Lee v. Dong–A Ilbo, 849 F.2d 876, 878 (4th Cir. 1988) (“Under the republication rule, one who repeats a defamatory statement is as liable as the original defamer”)). Liability, however, is not automatic, and republished statements may be subject to certain privileges the same way original statements are. If a person hears a defamatory statement and proceeds to share that statement with another person, whether liability will be imposed under the republication rule will depend largely on the extent to which the person repeating the statement (i.e., spreading the rumor or gossip) adopts the statement as her own by expressing the assertion as a fact, rather than merely as a representation made by another person. If Dave says, “according to Steve, Paul is a convicted felon” and that statement is literally true (because Steve did say that) even though Paul is not actually a convicted felon, a qualified privilege may protect Dave from defamation liability even though he is guilty of republication.

The privilege is easier to establish when the statement being repeated is one made by the government or otherwise on a matter of public concern. Some states recognize a “neutral reportage” privilege, which protects the “accurate and disinterested reporting” of charges on matters of public concern made by a “responsible, prominent” party against a public figure. (See, e.g., Edwards v. National Audubon Society, Inc., 556 F.2d 113 (2nd Cir.)). Virginia hasn’t formally adopted the “neutral reportage” privilege, but it does adhere to a so-called “fair report” privilege, which accomplishes essentially the same thing in most situations.

July 23, 2018

Defamation Through An Agent

by Lee E. Berlik

If a defendant claims he defamed the plaintiff only because he was “following orders,” acting at the instruction of his boss or other principal, and the evidence supports this, can a defamation claim be brought against the person who gave the order? In a word, yes. If a principal instructs his agent to make a public statement and that statement defames the reputation of another person or entity in a manner that would be actionable under Virginia law, the defamed party’s remedy is not limited to a lawsuit against the individual speaker; he may also pursue a claim against whoever is ultimately responsible the statement having been made.

Vicarious liability principles apply to defamation actions just as they do in tort law generally: the principal is normally liable for the tortious conduct of his agent. (See Mann v. Heckler & Koch Def., Inc., No. 1:08cv611 (JCC), 2008 WL 4551104 at *8 (E.D. Va. Oct. 7, 2008) (denying motion to dismiss defamation claim on basis that employer could be vicariously liable for employee’s defamatory statement); Fuste v. Riverside Healthcare Ass’n, Inc., 265 Va. 127, 134 (2003) (recognizing that defamation liability may be founded upon statements made by an authorized agent)). Corporations, for example, can only act through the conduct of their employees. If an employee commits libel or slander in the course of performing his or her duties for the employer, the employer itself can be held liable for defamation.

January 17, 2016

Slander on the Sly: Intentionally Overheard Accusations

by Lee E. Berlik

Publication is an essential element of any defamation claim. It exists when a communication is made to a third party (i.e., someone other than the person defamed, and other than the person making the statement). This is because the essence of libel and slander is the diminution of one’s reputation in the eyes of others. A false accusation made privately to you may be insulting, but it wouldn’t be defamatory because a statement not heard by others would not affect your reputation. But what if the false accusation is made in a setting that isn’t so private—a courtroom, for example? Could a devious tortfeasor avoid defamation liability by addressing his comments only to the plaintiff despite speaking loudly enough that third persons are likely to hear the statements?

Most Virginia cases defining publication describe a situation where a statement is made directly to a third party. (See, for example, Thalhimer Bros. v. Shaw, 156 Va. 863, 871 (1931) (defining publication as the “uttering the slanderous words to some third person so as to be heard and understood by such person”); Tomlin v. Int’l Bus. Machines Corp., 84 Va. Cir. 280 (2012) (referring to “the element of publication to a third party”)). Publication is a broader concept than these definitions suggest. The Restatement defines publication more comprehensively as communication of defamatory matter “intentionally or by a negligent act to one other than the person defamed.” The Virginia Supreme Court implicitly adopted the Restatement position in Food Lion, Inc. v. Melton, 250 Va. 144 (1995), where it held that the publication element is satisfied where, “when the defendant addressed the defamatory words to the plaintiff, another person was present, heard the words spoken, and understood the statement as referring to the plaintiff.”
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November 7, 2014

No Intra-Corporate Immunity Against Defamation Claims

by Lee E. Berlik

Workplace defamation actions face a number of obstacles. The one that probably comes up the most is the issue of qualified privilege. Employees often claim that a manager or supervisor defamed them in the course of a termination or negative performance evaluation. These statements are usually protected from defamation claims, as a limited privilege applies to communications made on any subject matter in which the person communicating has an interest, or with reference to which he has a duty, if made to another person having a corresponding interest or duty. In other words, in situations where it is necessary or expected that one employee will make statements concerning the performance of another (such as a performance evaluation), a qualified privilege will apply.

Another defense that is sometimes raised in the employment context is that of “intra-corporate immunity.” This is a defense borrowed from the law of conspiracy. Because a conspiracy, by definition, requires at least two legally distinct persons, and because two employees acting within the scope of their employment duties are both acting as agents of their employer, a conspiracy cannot be formed between those two employees due to the unity of interest and absence of a second entity. “A corporation cannot conspire with itself,” is the oft-used way of describing the reasoning behind the doctrine.
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August 29, 2014

One Yelp Review = One Publication

by Lee E. Berlik

Once upon a time, each separate copy of a defamatory statement was considered a separate publication, giving rise to a separate cause of action for defamation. Back then, if a defamatory article was published in a newspaper and the newspaper printed a million copies, the plaintiff could argue successfully that he had been defamed a million times. That is no longer the law, at least not in Virginia. Take Yelp reviews. If a new cause of action was created each time a consumer clicked a link leading to a defamatory review, the one-year statute of limitations would potentially never expire. Such a rule would likely allow plaintiffs to endlessly harass defendants by filing a new lawsuit with each new click. For reasons like these, Virginia follows the “single publication rule,” which treats an online post as a single publication despite the fact that it may be read over and over again by different people all over the world. The number of views may be relevant to assessing the plaintiff’s damages, but does not re-start the running of the statute of limitations or create new causes of action.

A Virginia law firm learned this lesson recently in Westlake Legal Group v. Yelp and Christopher Schumacher. Mr. Schumacher hired Westlake attorney Thomas K. Plofchan, Jr., back in 2009 and, according to his Yelp review, was not pleased with the representation he received. His review, posted on July 7, 2009, accused Westlake of “blatant incompetence and lying” and of having “a history of messing up cases.” Westlake sued for defamation, not only against Mr. Schumacher, but against Yelp itself. The firm did not file the lawsuit, however, until May 11, 2012, well after the one-year limitations period had expired.
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