The Virginia Defamation Law Blog
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.
The fair report privilege “shields news organizations from defamation claims when publishing information originally based upon government reports or actions.” (See Reuber v. Food Chem. News, Inc., 925 F.2d 703, 712 (4th Cir. 1991)). Stated another way, “the publication of public records to which everyone has a right of access is privileged, if the publication is a fair and substantially correct statement of the transcript of the record.” (Alexandria Gazette Corp. v. West, 198 Va. 154 (1956)). “It is not necessary that the published report be verbatim, but it must be substantially correct.” (Id.) The fair report privilege encourages the media to report
freely and diligently on government operations so that the government can be held accountable to the public.
In Spirito v. Peninsula Airport Commission, the Eastern District of Virginia relied on the fair report privilege to dismiss a defamation claim by Ken Spirito against The Daily Press that was based solely on a report published by the Virginia Department of Transportation. Spirito, an airport-management professional and former Executive Director of the Peninsula Airport Commission, found himself the subject of rumors that he had been improperly shredding documentary evidence relevant to an investigation into a failed loan. Spirito alleged that several texts and Facebook messages were shared with VDOT auditors charged with investigating the loan, and The Daily Press eventually reported on the VDOT’s findings in articles like this and this.
The Daily Press successfully argued that despite its republication of the statements claimed to be defamatory, it could not be held liable for defamation because its articles were fair reports of the VDOT audit report. Most of the content Spirito complained about was taken verbatim from the VDOT report, or was at least a fair and substantially correct characterization of its contents. The newspaper did not add anything to the content of the VDOT report to change the innuendo; any defamatory implication in the news stories was already present in the VDOT report. Accordingly, the court found that The Daily Press was protected by the fair report privilege as a matter of law and dismissed the defamation claim against it.
But what if we’re not dealing with a government statement? Looking back at my original example (“according to Steve, Paul is a convicted felon”), let’s assume Steve doesn’t work for the government and his statement about Paul is not on a matter of public interest. In that situation, the fair report privilege would likely not apply. If the statement is literally true, does the speaker (“Dave”) have any protection?
When rumors are shared and circulated, it is often in the context of a private conversation between friends, or perhaps a Facebook discussion amongst a limited number of people. All it takes to satisfy the publication element is communication of a defamatory statement to a single individual. Shouldn’t friends be permitted to share rumors with each other, in a private setting, without fear of exposing themselves to defamation liability? A potential answer is found in Section 602 of the Restatement (Second) of Torts, which states that rumors may be shared with another person in a situation protected by qualified privilege even if the speaker harbors strong doubts about the truth of the rumor, provided the following conditions are met:
(a) he states the defamatory matter as rumor or suspicion and not as fact, and
(b) the relation of the parties, the importance of the interests affected and the harm likely to be done make the publication reasonable.
The Restatement recognizes that there are certain social settings in which the parties to a conversation expect that information exchanged will not be limited to known, verifiable facts but may also include information “derived from irresponsible and unidentified sources,” so long as the information is conveyed as mere rumor or suspicion and not fact. (See Rest. 2d Torts § 602 cmt. b; see also Levin v. McPhee, 119 F.3d 189, 197 (2d Cir. 1997) (affording privilege protection to republication of speculative accusation where “a reasonable reader would understand that any allegations of murder, especially any implicating [the plaintiff], are nothing more than conjecture and rumor”)). Thus, to be entitled to the protection of qualified privilege, the speaker needs to be clear that the rumor is based on hearsay and not the speaker’s personal knowledge.
This makes sense, because sometimes what’s important is that a rumor exists, not necessarily whether the rumor is true. If a false rumor of declining sales causes Amazon’s stock price to fall, it would be difficult to describe the cause of the drop in price without repeating the false rumor, so the common-law republication rule should not automatically impose defamation liability if the rumor is repeated in good faith and described as mere rumor and not fact. Lawyers will recognize a similar concept in the rules of evidence, where hearsay rules permit the introduction into evidence of statements when offered to prove the fact that they were made, rather than to prove the truth of the matter asserted.
The Restatement offers two illustrations. In the first, “A informs his friend B that there is a rumor he has heard concerning the honesty of C, B’s servant. The fact that A knows nothing of C, and therefore neither believes the rumor nor has knowledge of facts that would lead a reasonable man to the belief, does not constitute an abuse of the privilege.” In the second, “A informs his daughter B that there is a rumor that C, B’s fiance, is an embezzler. The fact that A believes the rumor to be false does not constitute an abuse of the privilege.”
These examples recognize that it is reasonable to expect rumors to be shared between certain people, in certain circumstances. A father should be permitted to share a troubling rumor with his daughter about her fiance, even if the rumor turns out to be false. This is especially true where the rumor is described as such; a privilege may not be justified if the father were to state as a matter of fact that the fiance is an embezzler, adopting the accusation as his own rather than clarifying that the statement is an unverified rumor.
Regardless of whether a privilege applies to a particular republication, remember that the republication rule only applies to the element of publication; constitutional fault requirements still apply. In other words, a person who republishes a statement has published it for purposes of defamation liability, but the other elements of defamation need to be shown before liability will attach.