The Virginia Defamation Law Blog
In Virginia, when a defamation action is brought by a private individual (as opposed to a public figure), the plaintiff will usually only need to establish negligence to meet the “intent” element required to prevail in such actions. Public figures, on the other hand, need to prove the defendant acted with New York Times malice. A little-known exception to the rule for private individuals, however, is that if the statement at issue does not make “substantial danger to reputation” apparent to the reasonable publisher, then even private plaintiffs would need to prove malice to recover for defamation. As explained by the Virginia Supreme Court in Gazette, Inc. v. Harris, 229 Va. 1, 22-23 (1985), a threshold question of law for the trial judge is to determine “whether a reasonable and prudent editor should have anticipated that the words used contained an imputation necessarily harmful to reputation.”
Do not confuse “substantial danger to reputation” with defamatory meaning. Regardless of the state of mind of the defendant, a statement won’t be actionable if it doesn’t carry the requisite defamatory sting. Every defamatory statement must contain the sort of false characterizations that would tend to harm one’s reputation. What plaintiffs need to prove in every defamation action is not just that a statement has the potential to cause substantial danger to reputation but that it actually is the sort of statement that would tend to harm reputation. What we’re talking about now–the “Gazette test”–deals with the foreseeability and obviousness of the harmful nature of the statement. In other words, while a successful plaintiff will always need to demonstrate defamatory meaning, if that defamatory meaning would not be readily apparent to a reasonable person in the position of the defendant at the time the statement was made, the plaintiff will need to prove malice, even if he or she is a private individual.