The Virginia Defamation Law Blog

April 27, 2012

Defamed Lawyer and Wife Win $13.7 Million Against “Anonymous” Posters

The First Amendment does not protect the “right” to post anonymous comments online that defame the reputations of others. Libelous statements posted in Internet forums can come back to bite those who post them. In most cases, posters will not be able to conceal their identities once the gears of litigation start grinding. A jury in Texas recently awarded $13.78 million to a couple who were targeted by online posters — one of the highest verdicts ever recorded in Texas for an Internet defamation case.

In 2008, Shannon Coyel sought to divorce her husband and gain custody of her two children. She accused her husband of being a sexual pervert and claimed he had abused their daughter. Mark Lesher, an attorney, and his wife tried to help her with her divorce. The Coyels reconciled, however, and Mrs. Coyel then accused the Leshers and their ranch hand of sexual assault. Moreover, she claimed she had only reported an incident of abuse by her husband against her daughter because the Leshers had drugged her with pills.

The Leshers were indicted as a result of Mrs. Coyel’s sexual assault accusation. They also came under attack on Topix.com with some 25,000 comments, many anonymous, posted about them. They were called molesters, murderers, sexual deviants and drug dealers, and were accused of encouraging pedophilia. The Leshers said the attacks were so vicious, they had to move out of their town and Mrs. Lesher lost her business, a day spa. Mr. Lesher lost substantial business as well.

April 23, 2012

Defamation Plaintiffs Must Plead Exact Words and Non-Privileged Publication

by Lee E. Berlik

The elements of a defamation claim in Virginia are (1) publication, (2) of an actionable statement and (3) the requisite level of intent. A statement regarding a person’s professionalism may constitute defamation per se (meaning the plaintiff need not prove actual damage to reputation) if it implies that the person is unfit to perform the duties of his job, lacks integrity in performing those duties, or if it would tend to “prejudice” the plaintiff in his profession. Fairfax Judge Robert J. Smith, in a detailed opinion, recently made clear that to survive demurrer, a plaintiff must also state the exact words alleged to be defamatory, and must show that the defamation occurred in a non-privileged setting.

In Tomlin v. IBM, three former IBM employees brought defamation claims against IBM and five individuals. IBM received an anonymous letter alleging that Ms. Tomlin acted unethically by hiring her brother, Mr. Tomlin. After an investigation, IBM terminated the employees. Plaintiffs claimed that IBM and the individual defendants made the following false and defamatory statements to IBM colleagues: that Ms. Tomlin acted unethically in hiring her brother and that she and Mr. Tomlin and plaintiff Williams conspired to cover up the unethical hiring; that Mr. Tomlin falsely claimed to have certain skills in his job application and did not meet the minimum qualifications for his consulting position; and that Mr. Williams submitted a fraudulent hiring form regarding Mr. Tomlin. Plaintiffs alleged that defendant Ms. Minton-Package told IBM employees that Ms. Tomlin was fired because she had hired her brother and tried to “cover it up.”

Although a plaintiff does not need to plead specifics such as the identity of the speaker and other details surrounding purportedly defamatory statements, the complaint must contain the exact words spoken or written. Tomlin’s complaint, however, merely alleged the general nature of the defamatory statements; only the statements imputed to Ms. Minton-Package contained exact words. The court found that the plaintiffs failed to plead the defamatory statements with sufficient particularity except as to Ms. Minton-Package, and it proceeded to examine publication only as to her.

April 16, 2012

Middleburg Writer Dee Dee Hubbard Turns Tables On Accusers with Defamation Suit

by Lee E. Berlik

Shortly after being found “not guilty” of embezzlement by a Loudoun County jury, Deanne “Dee Dee” Hubbard, editor of the Middleburg Eccentric, has filed a defamation action against her chief antagonists, Jack J. Goehring, III, and his wife, Mary Kirk Goehring, in Loudoun County Circuit Court.

For over a decade, Deanne “Dee Dee” Hubbard managed Middleburg, Virginia properties co-owned by Jack Goehring and his wife. She also lived in one of their rental properties with her son and daughter-in-law and she and her daughter rented space in one of the Goehrings’ commercial buildings. Ms. Hubbard was responsible for collecting rents from the Goehring properties. When Mr. Goehring discovered several rent checks had found their way into accounts Ms. Hubbard controlled, rather than into his accounts, he urged the Commonwealth Attorney’s office to prosecute Hubbard. Ms. Hubbard claimed she’d mistakenly marked the checks for the wrong accounts and set the accounts right as soon as the error was discovered.

Ms. Hubbard was prosecuted on fourteen felony embezzlement charges but was acquitted of all charges. Now, she and several family members have sued Goehring and his wife for waging “a campaign of malicious prosecution, libel, slander, and defamation.” The complaint paints Mr. Goehring as a vindictive man intent upon securing the charges against Ms. Hubbard and ratcheting up the surrounding publicity so as to defame and humiliate her. It accuses Goehring of filing an affidavit with the Middleburg Bank accusing Hubbard and her family members of identity theft, using his personal identifying information to obtain money, goods, services and other benefits without his authorization. The plaintiffs claim Goehring made false statements to law enforcement authorities that led to Hubbard’s arrest, arranged to have a friend photograph Hubbard being taken into custody in handcuffs, and then helped the photographer find a buyer for the photos. Ultimately, the photos appeared on television, in the local paper and on the Internet.

April 14, 2012

Slander of Pilot by Airline Results in $1.4 Million in Damages

by Lee E. Berlik

Workplace defamation suits can result in high damages awards. A former pilot and federal flight deck officer (FFDO), William Hoeper, successfully sued his former employer, Air Wisconsin, for defamation after one of its managers, Patrick Doyle, reported Hoeper to the Transportation Security Administration (TSA) as a potential threat to airline security. Last month, the Supreme Court of Colorado, applying Virginia law, upheld a $1.4 million jury verdict against Air Wisconsin.

Hoeper had been taking a test to fly a new plane. According to test administrators, Hoeper ended the test abruptly, raised his voice at the administrator, and used profanity. Afterwards, while Hoeper was waiting for his flight home, Doyle called TSA to report that Hoeper may be carrying his government-issued FFDO firearm and that he was concerned about Hoeper’s mental stability because Hoeper had been terminated that day.

When a plaintiff alleges defamation involving a “matter of public concern,” the defendant is entitled to First Amendment free speech protection unless the plaintiff can demonstrate that the statement was false and made with actual malice. Actual malice is present if the statement was made by the defendant with (1) knowledge of the statement’s falsity or (2) reckless disregard as to the statement’s falsity. However, even before the plaintiff presents his case, an airline defendant may be able to avoid liability altogether under the Aviation and Transportation Security Act (ATSA), which provides immunity from civil suits to “an air carrier who voluntarily discloses any suspicious transaction relevant to certain aircraft security statutes.” If the disclosures are made with actual knowledge or reckless disregard as to the statement’s falsity, however, ATSA immunity is lost and the plaintiff can proceed to demonstrating that a statement was defamatory.

April 7, 2012

Defamation Case Against Barbara Walters Dismissed

by Lee E. Berlik

A federal court in Massachusetts has dismissed a defamation case against Barbara Walters brought by a woman claiming to be the former lesbian lover of Walters’ daughter. In Walters autobiography, Audition: A Memoir, she refers to the woman, Nancy Shay, by first name only in a two-sentence statement. Walters wrote that “Nancy” was kicked out of high school for “bad behavior” after being “found in a nearby town high on God-knows-what” with Walters’ daughter. Shay did not deny being suspended from school but claimed the statements were defamatory because they falsely portrayed her as a user of illicit drugs. The court found the allegations were insufficient to state a claim for defamation and dismissed the case.

In Massachusetts, as in Virginia and every other state, there can be no defamation liability without “fault” on behalf of the defendant. For private plaintiffs (as opposed to public figures), this requires (at a minimum) an allegation that the defendant acted negligently with respect to determining the truth. Moreover, a statement is incapable of defamatory meaning unless it would tend to hold the plaintiff up to scorn, hatred, ridicule or contempt “in the minds of any considerable and respectable segment in the community.” In other words, a statement will not be considered defamatory if only a very small group of persons would view it as derogatory.

In her brief, Shay argued that Walters was at fault for making a false statement as to the reason for her suspension and that the statement damaged her reputation amongst the former faculty and students of the high school from which she was suspended. Alternatively, Shay suggested that, even if the statement that she was expelled for “bad behavior” was true, the allusion to drug use was made maliciously.

March 30, 2012

Duck Creek Energy Says Fracking Accusations Defamatory

by Lee E. Berlik

Duck Creek Energy, an Ohio oil and gas development company, has sued two local environmental activists, Tish O’Dell and Michelle Aini, for various claims arising from their publication of statements characterizing Duck Creek’s product as “a product of fracking.” Duck Creek claims the defendants are liable for (1) defamation per se; (2) tortious interference with existing business relationships; and (3) tortious interference with prospective business relationships. According to Duck Creek, the activists acted with malice and/or negligently disseminated false information, even after being apprised of the true facts.

Duck Creek manufactures and distributes AquaSalina, a salt solution used for de-icing roads. AquaSalina is made from raw brine, a byproduct of oil and gas exploration, which Duck Creek purifies at a plant in Cleveland. It has been used for years because its heavy salt concentration works on surfaces in temperatures as low as -10 degrees Fahrenheit. In contrast, a liquid solution made with rock salt only works in temperatures down to about twenty three degrees Fahrenheit. AquaSalina was environmentally tested in 2004 and found to be safe.

The Complaint alleges that shortly after an article appeared on Cleveland.com discussing the effectiveness of AquaSalina, O’Dell sent a “Dear Neighbors” email to various recipients, including the mayor of Brecksville, Ohio. Brecksville was an AquaSalina customer. In her email, O’Dell characterized AquaSalina as “waste fracking fluids” and criticized the reporter for failing to mention toxic chemicals and radioactive material in liquid from fracking. She encouraged the email recipients to read other articles she attached, which, Duck Creek claims, had nothing to do with AquaSalina. O’Dell allegedly continued to claim, at public meetings, that AquaSalina was environmentally unsafe. Brecksville thereafter decided not to use the product. O’Dell and another member of an environmental group also allegedly warned a second city to “stop spreading carcinogens on our streets” which, Duck Creek asserts, refers to AquaSalina.

March 21, 2012

Defamation Per Se By Former Judge Yields $350,000 in Damages

by Lee E. Berlik

Earlier this month, the Virginia Supreme Court affirmed the decision of the Williamsburg Circuit Court to uphold a jury verdict against former circuit court judge Verbena Askew in the amount of $350,000 for defamation. Askew had made a comment to The Daily Press that plaintiff Brenda Collins, who had worked in the court over which then-judge Askew presided, “was institutionalized – that’s the only way you qualify for family leave.” The Daily Press did not actually publish the statement, but the Court found that the defamation occurred when the statement was made to the press.

A private individual claiming defamation must prove by a preponderance of the evidence (1) that the defamatory publication is false and (2) that the defendant “either knew it to be false, or believing it to be true, lacked reasonable grounds for such belief or acted negligently in failing to ascertain the facts on which the publication was based.” If the publication amounts to defamation per se, such as defamatory statements that impute an unfitness to perform official duties, the plaintiff is presumptively entitled to compensatory damages.

Askew first argued that she should not have to pay damages because her statement about Collins was never published by The Daily Press and thus did not proximately cause any injury to Collins. The Virginia Supreme Court rejected this argument, holding that the evidence supported the jury’s finding that Askew made a defamatory statement to the press either knowing it was false or negligently failing to ascertain the facts. Because the jury found the statement amounted to per se defamation, it was entitled to presume that Collins suffered damages as a result, regardless of whether The Daily Press republished the statement.

March 14, 2012

Libel Per Se? Libel Per Quod? Neither, Says Virginia Court

by Lee E. Berlik

Professional Timothy B. Hanks is a professional tax preparer who took offense at a television segment aired by WAVY Channel 10 in the Hampton Roads area that promised to inform viewers “how to avoid unscrupulous tax preparers,” then proceeded to tell a story involving an admitted mistake made by his company, Reliable Tax & Financial Services. Hanks sued the station for libel, libel per se, and libel per quod, seeking five million dollars in damages. Judge Doumar (Norfolk) rejected all three theories and, last month, dismissed the entire case with prejudice.

Libel per se and libel per quod are variations of a defamation cause of action. Under Virginia law, a claim for libel per se may exist for certain categories of defamatory statements deemed serious enough to warrant presumed damages. This includes statements such as those accusing a plaintiff of committing a crime involving “moral turpitude,” of being infected with a contagious disease, or, more commonly, of being unfit to perform the duties of his profession. Libel per quod, on the other hand, refers to statements the defamatory nature of which is not readily apparent, but which are understood by the recipient to be of a defamatory nature in light of extrinsic facts known by that person.

Hanks claimed the “unscrupulous” remark constituted defamation per se in that it imputed to him “an unfitness to perform the duties of office or employment for profit, a lack of integrity in the discharge of duties of such office, and the commission of a criminal offense.” The court disagreed for several reasons, holding that the statements (1) are not “of or concerning” Hanks, (2) are not capable of defamatory construction, and (3) are constitutionally-protected opinion. The court also found that Hanks failed to sufficiently plead actual malice or special damages.

February 27, 2012

Lawyer’s Tortious Interference Claim Against Former Lovers Dismissed

by Lee E. Berlik

A federal judge in the Southern District of New York has dismissed a claim by a lawyer who claims that his ex-lovers tortiously interfered with his prospective business relationships by posting allegedly defamatory material on the Internet. In Matthew Couloute, Jr. v. Amanda Ryncarz and Stacey Blitsch, the judge held that the lawyer failed to state a claim upon which relief could be granted and denied his motion for leave to amend.

Couloute had previously dated both Ryncarz and Blitsch. After the relationships ended, Ryncarz and Blitsch posted comments on an Internet site, www.liarscheatersrus.com, painting Couloute in an unfavorable light. Both women expressed their views that Couloute was a liar and a cheater, that he was manipulative and that he used the people in his life to get what he wanted. Couloute sued them both, arguing that these statements were defamatory and that they caused him damage by interfering with his law practice in New York. He claimed that the woman made the statements with the specific purpose of causing him financial trouble. The court disagreed.

Applying New York law (which closely parallels Virginia law in this area), the court said that the plaintiff’s complaint could not stand because it did not contain all of the elements for a claim of tortious interference with prospective business relations. To state a proper claim, the plaintiff would have to allege: “(1) business relations with a third party; (2) the defendant’s interference with those business relations; (3) the defendant acted with the sole purpose of harming the plaintiff or used dishonest, unfair, or improper means; and (4) injury to the business relationship.” In this case, Couloute failed to allege a specific business relationship with which the defendants interfered.

February 13, 2012

Defamation by Implication in Virginia

by Lee E. Berlik

Is truth an absolute defense to a defamation claim? Despite what you may have read elsewhere, the answer (here in Virginia) is no. Aside from the fact that falsity is an element of the claim that needs to be proven by the plaintiff (rather than an issue to be raised as a defense), “defamation by implication” is a developing area of the law in which liability can be based on a statement that is literally true. Not all implications and inferences will be actionable; the speaker must have intended to imply a defamatory meaning. (See Pendleton v. Newsome, 290 Va. 162, 174 (2015)). To prevail in a defamation-by-implication case in Virginia, a plaintiff must prove:

that the defendant made the statements alleged in the complaint,
that the statements, even if facially true, were designed and intended by the defendant to imply a defamatory meaning,