The Virginia Defamation Law Blog

Many jurisdictions, including Pennsylvania, follow the old common law rule that equity will not enjoin a libel. The First Amendment carries a presumption against prior restraints, but does not pose an absolute bar to injunctive relief in defamation actions. Still, most courts are extremely reluctant to grant equitable relief in actions for libel, slander, invasion of privacy, and related actions, due in no small part to the fact that money damages are usually adequate to compensate the plaintiff.

Recently, in Pennsylvania, Dr. Steven R. Graboff, a board certified orthopaedic surgeon and expert witness, tried unsuccessfully to obtain an injunction against the American Academy of Orthopaedic Surgeons and the American Association of Orthopaedic Surgeons (AAOS), requiring them to remove from their website an article that portrayed him in a false light. In an earlier action, Graboff had sued for false light invasion of privacy based on the offending article and a jury awarded him $196,000 in economic and non-economic damages. After the lawsuit, however, AAOS refused to take down the article. So Dr. Graboff sued them again, alleging "continued tortious conduct."

He sought an injunction as well as additional compensatory and punitive damages, claiming AAOS intentionally and maliciously disregarded his rights by keeping the harmful article on the website in willful disregard of the earlier judgment. AAOS moved to dismiss this new action on several grounds.

First of all, the court found that the case was barred by the doctrine of res judicata, as it was based on the very same article that was at the center of the original suit. Res judicata bars a second suit involving the same facts and same parties or their privies where a judgment has already been rendered in a prior suit. Once there has been a judgment, the parties and their privies are bound as to all matters covered in the first suit as well as all other matters that could have been raised in that suit. Dr. Graboff's second suit involved all the same parties and centered on the same article. The judgment on the merits in the first case therefore barred the second suit.

Regarding the demand for injunctive relief (i.e., removal of the article from the website), the court held that injunctive relief is not permitted for defamation and false light cases in Pennsylvania. The Pennsylvania Supreme Court has not considered whether an exception to this rule might apply where a jury has determined that the defendants' statements were defamatory, but the Third Circuit Court of Appeals has considered the question and has concluded that Pennsylvania would not adopt such an exception, even though Missouri and Ohio have done so.

The Third Circuit considered several factors in its decision. The court found that the Pennsylvania Supreme Court "continues to place great emphasis on the adequate remedy doctrine as a bar to equitable relief." The common law maxim that equity will not enjoin defamation has been in place for almost two centuries. The court found that only a few other states have recognized an exception where a jury had found defamation, and Pennsylvania wasn't one of them. Even if the Pennsylvania Supreme Court might adopt the exception, the Third Circuit believed it would likely be very selective in choosing the cases in which it would apply it. And the court didn't believe the case before it was a particularly strong candidate for making new law.

Moreover, Graboff had an adequate remedy at law--he'd been awarded almost $200,000 in damages. Accordingly, the court refused Graboff's request for an injunction and dismissed the second suit in its entirety.

The Internet search giant Google periodically issues "Transparency Reports" which summarize government requests for removal of content from the Internet and Google's response to the requests. Google also discloses statistics regarding requests received from copyright holders. The latest report, issued for the last six months of 2012, reveals that Google received 2,285 government requests to remove 24,179 pieces of content during that time period - a significant increase from the first six months of 2012 during which it received 1,811 requests to remove 18,070 pieces of content. By a large margin, the number one reason for a removal request is claimed defamation, followed by privacy and security reasons, trademark and copyright infringement, violence, impersonation, government criticism, bullying, national security, adult content, hate speech, religious offense, drug abuse, electoral law, geographical dispute, suicide promotion and "other."

The large increase in removal requests is mostly due to clips of the movie "Innocence of Muslims" and Brazil's most recent elections. Twenty countries asked Google to review YouTube videos containing clips of "Innocence of Muslims." Seventeen of those countries asked Google to remove the videos. Although Google restricted the videos from view in some countries, it did not remove the content from others. Google received 316 requests for removal of information relating to alleged violations of Brazil's electoral code. Although it removed some content in response to court decisions, it is appealing other cases on the ground of freedom of expression under the Brazilian Constitution. Also related to the elections, Google received requests from a prosecutor, an attorney and a judge to remove blog posts and search results that were allegedly defamatory. Google refused to remove this content.

The latest report shows that Google readily removes content that infringes a protected copyright or trademark, and that it complies with court orders to remove defamatory matter. However, Google is typically unwilling to remove allegedly defamatory material that has not been declared as such by a court of law. For example, Google refused to remove YouTube videos that allegedly defamed a school administrator, police officers, government officials and prosecutors, and it only age-restricted an allegedly defamatory video showing Argentina's president in a compromising position. However, Google did remove items that a court had ruled defamatory to a man and his family, and in response to a court order, it removed a blog post that allegedly defamed a retired military officer accused of business gain through political ties.

Want Google to scrub defamatory material from the Internet? Get a court order.

Makini R. Chaka is an owner of Remy Enterprise Group, LLC ("Remy"), an entity that arranges and coordinates logistics for celebrity appearances at public and private events. When Remy arranges a celebrity appearance, either the venue or the celebrity pays Remy a portion of the fee paid to the celebrity. Remy's clients include professional athletes, music recording artists and other well-known entertainers.

According to a new lawsuit filed in District of Columbia federal court, Washington Redskin tight end Frederick Davis has described Chaka as a "madam" and "pimpette" who procures prostitutes for professional athletes. In her Complaint, Chaka contends that Davis also insinuated that she is violent, dishonest and an extortionist. Chaka claims that Davis said as much to Chaka's clients and potential clients, and has sued him for defamation, invasion of privacy, tortious interference with contract and intentional infliction of emotional distress.

To falsely identify someone as a "madam" or "pimp" may be defamatory, but much will depend on the precise words used and the context in which the statement was made. Not long ago, motorcycle stuntman Evel Knievel sued ESPN when they published a picture of him with his arms around two women (one of whom was his wife) and the caption, "Evel Knievel proves that you're never too old to be a pimp." Evel claimed the caption was defamatory because he was not actually soliciting prostitution and his wife was not a prostitute. The Ninth Circuit held that the statement was not actionable, based primarily on the fact it was published on an extreme sports website full of lighthearted, jocular content targeted at a youthful audience. In other words, the court found that a reasonable reader would likely not interpret the "pimp" statement literally.

In this case, Chaka doesn't identify the complete statement or the context in which it was made. She alleges only that "In 2012, Davis [and his bodyguard] repeatedly told third parties that Chaka is a "madam" and "pimpette" who procures prostitutes for professional athletes." Without more, it is difficult to tell how a reasonable listener would interpret those statements and whether this case is likely to withstand a motion to dismiss.

Chaka asserts that her good name and reputation are crucial to Remy's ability to maintain current and secure new clients. She claims that Davis was aware of some of the clients and venues with which Remy had ongoing business relationships, and that publication of the allegedly defamatory statements to these clients resulted in the cancellation of contracts and have harmed Remy's reputation and business.

According to Chaka, Davis acted maliciously in making the statements, knowing them to be false. The news media published the statements in print, on the radio, on television and on the Internet. At Chaka's request, most of the media outlets stopped publishing the statements. Chaka asserts that publication of these statements harmed her reputation and that of her company, holding them up to public ridicule and contempt and deterring others from associating with them. Chaka contends Remy earned over $60,000 annually before the published statements but less than $30,000 since the statements were published. Chaka and Remy seek damages for lost income and profits, damage to reputation, and emotional distress.

Travel agent John Mathews may have a meritorious claim against a Virginia hotel for breaching a contract to provide food for a large group of tourists. It's hard to tell, though, when he clutters his complaint with counts for defamation, invasion of privacy, tortious interference, and intentional infliction of emotional distress, and fails to include a count for breach of contract. This latest complaint represents Mr. Mathews' fourth attempt to present his case to a federal court in Pennsylvania. Had he opted to file a simple breach-of-contract action in Virginia's general district court instead, he might have secured a judgment by now.

The allegations go as follows. Mr. Mathews booked a "Winter Get Away Tour" with the Westin hotel at Washington Dulles in 2012. He alleges he planned the event with the hotel sales manager and estimated there would be 150 guests with the tour. He claims he emphasized that this was only an estimate and he would furnish a final number later.

When 174 people signed up for the getaway (or rather, the "get away"), the hotel was not able to feed everyone, as the head chef apparently wasn't notified of the final number. On both Saturday and Sunday nights, some guests went without meals and an unlimited, all-you-can-eat buffet was converted to a limited, one-serving one. Mathews had advertised the tour to include two buffet dinners and two buffet breakfasts and claims he had to reimburse many guests due to the missed or reduced meals.

Mathews doesn't allege breach of contract, but alleges the hotel "Sale Manager" defamed him by calling him a "dishonorable person," which "almost incited a riot." He alleges the defendants' actions forced him to reimburse $3,000 to certain guests and caused him to suffer an additional $4,000 loss because some guests refused to pay their balances owed. For the alleged defamation, he claims at least $450,000. As mentioned above, he also alleges a number of other torts.

If Mr. Mathews contends the hotel breached an agreement to provide sufficient food for 174 people, he should have included a breach of contract claim. Different policy considerations distinguish the law of torts from the law of contracts, and there are rules against trying to recover pain-and-suffering type damages when all you've suffered are disappointed economic expectations. If the case is really about false statements made by an agent of the hotel and not a contractual breach, more will be required than a vague statement about being "dishonorable."

I mentioned this is the plaintiff's fourth attempt to survive dismissal. Mathews originally filed a separate case against the hotel, alleging constitutional violations, defamation, and emotional distress. The court dismissed the constitutional claim because the defendant wasn't a state actor as required by 42 U.S.C. § 1983. The complaint hadn't properly pled the elements required to assert diversity jurisdiction so the court gave Mathews a chance to amend his complaint to include the necessary allegations.

Mathews filed an amended complaint, adding Starwood Hotels & Resorts Worldwide, Inc. as a defendant. But the complaint failed to plead the defendants' citizenship so the court dismissed it with leave to file a second amended complaint if Mathews could cure the jurisdictional defect. The court explained that, under 28 U.S.C. § 1332(c)(1), corporations are citizens "of every State and foreign state by which it has been incorporated and of the State or foreign state where it has its principle place of business."

Mathews tried again, filing a second amended complaint against Westin and Starwood with substantially the same allegations as before. He identified himself as a Pennsylvania citizen, Westin as a "US citizen incorporated in Virginia," and Starwood as a "US citizen hotel incorporated in the state of Maryland."

But the second amended complaint failed to state either defendant's principal place of business. Once again, the court dismissed the case for lack of subject matter jurisdiction. Pointing out that Mathews had been instructed how to cure the problem but hadn't done so, the court concluded that further attempts to amend would be futile. The case was dismissed without prejudice to plaintiff refiling his claims in state court.

But Mr. Mathews didn't re-file in state court. Instead, he brought this new case in federal court. If the court doesn't dismiss it on res judicata grounds, it will likely dismiss it for failure to state a valid claim.

I previously reported on the Stafford County case of Suzanne Brown v. Katherine Schoeneman in which Brown, an FBI agent, brought a defamation action against Schoeneman for allegedly false reports Schoeneman made to superiors accusing Brown of making sexual advances toward her. The Government removed the case to federal court, substituted itself as the defendant under the Westfall Act, and moved to dismiss under the Federal Tort Claims Act. The court granted the motion as the FTCA's waiver of sovereign immunity expressly excludes claims for libel and slander. See 28 U.S.C. § 2680(h).

The Westfall Act (aka the Federal Employees Liability Reform and Tort Compensation Act of 1988) amended the Federal Tort Claims Act to make it the exclusive remedy for torts committed by federal employees acting within the scope of their employment. It precludes federal employees from being sued for claims arising under state tort law (such as slander or intentional infliction of emotional distress) if they were acting within the scope of their employment. See 28 U.S.C. § 2679(b)(1). If the FTCA precludes recovery against the United States, then the plaintiff may be left without a remedy, as this case demonstrates.

Upon consideration of the Government's motion to dismiss, the only issue before the court was whether the allegedly defamatory acts fell within the scope of Ms. Schoeneman's employment. The plaintiff did not dispute that if the conduct was committed within the scope of employment, substitution of the United States as the defendant and removal to federal court was appropriate.

The Government's certification that a party acted within the scope of employment is conclusive unless challenged. Where challenged, the certification is prima facie evidence that the alleged acts were within the scope of employment, and the plaintiff must prove by a preponderance of the evidence that the employee was not acting within the scope of employment. A plaintiff is required to provide specific evidence rather than conclusory allegations that contradicts the certification. The question is always one of law for the court to decide, and discovery is not appropriate on the issue unless there is a material dispute of fact.

The court examined whether Brown had demonstrated by a preponderance of the evidence that Schoeneman was acting outside the scope of her employment when she reported Brown's alleged sexual harassment. The court noted that sexual harassment is illegal. The FBI has a policy of no tolerance where sexual harassment is concerned, and employees are encouraged to report such matters. Preventing and correcting workplace sexual harassment is therefore within the ordinary course of the FBI's business. Additionally, Schoeneman was on duty when she made the reports, and she made them at FBI facilities. Schoeneman, an FBI employee, followed FBI procedure and policy and reported an incident of harassment in the workplace. She clearly was acting within the scope of her employment, the court found. Brown had thus failed to meet her burden.

Brown argued that Schoeneman's conduct fell outside the scope of her employment because she committed an intentional tort when she reported the alleged harassment and because her reports were motivated entirely by her own interests and reckless disregard for the truth. The court rejected these arguments as the willfulness or wrongful motive of an employee does not excuse an employer's liability. Intentional torts are within the scope of employment as long as the act was done within the ordinary course of business. Any contrary rule would undermine the Government's sovereign immunity. Additionally, the Supreme Court of Virginia has held that an employee's motive in performing the allegedly tortious act does not determine whether the action falls within the scope of employment. The issue is whether the service in which the tortious act was done was within the ordinary course of business. For these reasons, the court dismissed the case.

In ordinary defamation cases, proving malice is a straightforward affair because the statement at issue is only capable of being understood in a defamatory sense and the only question is whether the speaker knew the statement was false (or acted with reckless disregard to its falsity). Conversely, in defamation-by-implication cases, the allegedly defamatory statement has two possible meanings: one that is defamatory and one that is not. This complicates the malice inquiry because the speaker may or may not have intended to imply the defamatory meaning.

Recently, the Third Circuit had the opportunity to consider (1) whether the actual malice standard applies differently in defamation-by-implication cases such that more than knowledge of falsity or reckless disregard for truth is required and (2) if the standard is different, can a plaintiff can satisfy the actual malice standard by showing defendant's mere awareness of a defamatory implication and reckless disregard of that implication or whether plaintiff must show actual intent to convey a defamatory meaning.

The Third Circuit agreed with several other circuits that plaintiffs in defamation-by-implication cases must show something beyond knowledge of, or recklessness in regard to, the FALSITY of the statement's defamatory

Former judge Leon Kendall failed to prove malice in #defamation case against The Daily News, says 3d Circuit.ow.ly/iShwV

— Lee E. Berlik (@LeeBerlik) March 13, 2013

The Third Circuit apparently breaks down the malice requirement into two elements in defamation by implication cases, separating out a falsity element with a "communicative intent" element. According to the court, the falsity element refers to the extent to which a defendant must be aware that the defamatory meaning of his statement is false, and the communicative-intent element refers to the extent to which defendants must be aware of the defamatory meaning of their statement.

To me, that sounds like an unnecessarily confusing way to describe the malice test. After all, if a defendant was aware the defamatory meaning was false, then he necessarily knew the defamatory meaning existed. The test makes more sense if you examine communicative intent first. Thus, in defamation-by-implication cases, falsity shouldn't even come into play until a threshold determination has been made that the defendant intended to communicate a statement with defamatory meaning (or, as this court held, at least knew the statement was capable of being understood in a defamatory sense).

The court held that a plaintiff can show communicative intent by demonstrating that the defendant either intended to communicate that defamatory meaning or knew of the defamatory meaning and acted in reckless disregard of it. The court found that this approach follows from the Supreme Court's inclusion of recklessness in the actual malice standard. The Supreme Court has noted that actual malice is a term of art, a shorthand phrase used to describe the First Amendment protections for speech injurious to reputation. The Court has described reckless disregard as the line between protected false communications and unprotected false communications. The Third Circuit found that recklessness is the outer limit of actual malice and that the communicative intent element of actual malice in defamation-by-implication cases can be satisfied by reckless disregard for the defamatory meaning of a statement.

Other circuits also support this approach, stating that to find actual malice in defamation-by-implication cases, the plaintiff must show that defendants intended or knew of the implication that the plaintiff attempts to draw from the allegedly defamatory material. The Third Circuit interpreted the phrase "knew of" to imply recklessness and used the term "recklessness" in its own standard believing that it conforms more closely to the Supreme Court's definition of actual malice. The court found that recklessness requires that the defendants knew that the defamatory meaning was not just possibly but likely and still made the statement despite the knowledge of that likelihood.

Recmad, an apparently straitlaced company from Portugal, disapproves of the music video for "Danza Kuduro." Why? Because the artists in the video are shown partying on Recmad's yacht with a bunch of scantily clad women. In a lawsuit filed in Florida last month, Recmad claims it never agreed to allow the defendants to show the yacht in the music video, and that the video implies that Recmad advocates and engages in a "fast, lavish, over-the-top lifestyle." Recmad seeks to recover damages for defamation by implication.

The suit, recently removed to federal court, is against UMG Recordings and other music industry businesses and professionals. According to the allegations of the complaint, defendants Don Omar and Lucenzo began filming the music video for "Danza Kuduro" in early 2010 on the Caribbean island of St. Martin. The video features Omar and Lucenzo living the high life with yachts, mansions, fast cars and "women in bikinis." According to the complaint, Le Reve is "prominently featured in the video," but apparently is shown only briefly, starting at the 2:15 mark. The video shows Omar and Lucenzo approaching some women on Le Reve, who then disembark to join Omar and Lucenzo on another yacht.

Recmad contends that the video became a worldwide hit, topping the music charts in numerous countries and that defendants have profited substantially through the sale and marketing of the song and video. According to Recmad, the defendants' unauthorized use falsely implies that the owners of Le Reve engage in "wrongful and suspect conduct." The crux of Remcad's argument is that juxtaposition of its yacht with a lifestyle it does not condone resulted in defamation by implication. Recmad claims that it has "suffered damages" but does not specify those damages.

Most cases involving unauthorized product placement tackle the issue from the perspective of trademark law. In theory, unpermitted placement of a product in a music video could result in trademark infringement if viewers of the video might mistakenly conclude the product was made by someone else. In such cases, courts balance the right of the trademark owner to prevent confusion with the performance artist's right of free speech and expression. These cases rarely succeed because unauthorized product placements usually have some artistic relevance and they rarely are likely to result in consumer confusion.

But Recmad does not allege it owns any intellectual property in the yacht. Rather, it merely alleges that it is the owner of Le Reve and that the display of its property in a music video of arguably questionable taste is damaging to its reputation.

Many states recognize that defamation liability can be based on an implied statement, even if the express statement is not literally false. The issue is frequently litigated in cases against media defendants, as the media often publishes damaging statements about people while being very careful not to make any literally false statement.

But to state a proper claim for defamation by implication, the statement must not only be "of and concerning" the plaintiff, but must be interpreted as a reasonable person would understand it. In these two areas, Recmad's claim probably falls short. For one thing, it takes a very keen eye to even spot Recmad's yacht in the video. Another yacht is featured far more prominently than Le Reve. To the extent any statement is being implied with respect to the yacht owners, it seems unlikely that many viewers would conclude any statement is being made about the owner of Le Reve. Second, even if they were to so conclude, it seems even less likely that a reasonable viewer would conclude that the owner of Le Reve advocates or personally engages in a hard-partying lifestyle, simply because three women in bikinis are shown aboard catching some rays. I expect to see this case dismissed promptly.

If you work for the federal government and a co-worker spreads false and malicious rumors about you that damage your reputation, it will be very difficult to pursue a claim for libel or slander against the individual in question. The recent Maryland case of Shake v. Gividen demonstrates the hurdles a prospective plaintiff would face in pursuing such an action.

Donald Shake worked for the Department of Veterans Affairs until he was terminated in 2011. Teresa Gividen and Brian Sexton also worked at the Department of Veterans Affairs. Gividen was the Assistant Human Resources Chief. Shake claimed that Gividen and Sexton accused him of accessing the medical records of a veteran and not completing hundreds of work orders. He asserted that Gividen and Sexton started rumors that Shake was the subject of disciplinary proceedings and that numerous complaints had been lodged against him. Shake sued Gividen and Sexton for defamation, alleging that they slandered his name and reputation by making false and malicious statements about him. Shake alleged that he lost his job and retirement benefits as a result of the slander and that his reputation was harmed such that he was unable to secure subsequent employment.

The United States filed a motion contending that Gividen and Sexton should be dismissed because they were acting within the scope of their employment, and it asked to be substituted as the sole defendant in the case pursuant to the Federal Tort Claims Act (FTCA). The United States further argued that Shake's defamation claim should then be dismissed for failure to exhaust administrative remedies and on sovereign immunity grounds. The court agreed.

The FTCA provides that when the Attorney General certifies that a defendant employee in a state court case was acting within the scope of his employment with the federal government at the time of the incident, the case shall be removed to federal court and be considered an action against the United States and the United states shall be substituted as the party defendant. 28 U.S.C. § 2679(d)(2).

Here, the United Stated Attorney General for the District of Maryland, acting on behalf of the U.S. Attorney General, certified that both Gividen and Sexton were acting within the scope of their employment at all times relevant to Shake's claims. Shake challenged the certification, and when certification is challenged, the burden shifts to the plaintiff to prove that the defendants were acting outside the scope of their employment.

In this case, Shake did not present any evidence nor hint at any evidence that might suggest that Gividen and Sexton were acting outside the scope of their employment. The court found that Shake therefore failed to meet his burden, and it dismissed the claims against Gividen and Sexton. The court substituted the United States as the sole defendant pursuant to the FTCA.

Under the FTCA, a plaintiff must exhaust his administrative remedies by presenting his claim to the appropriate federal agency before filing an action in federal court. Shake should have brought his complaint to the Department of Veterans Affairs. Shake claims that he appealed his termination to the Merit Systems Protections Board and therefore satisfied the exhaustion remedy. However, the United States provided evidence that there was no record of such a claim. The court found that Shake failed to file an administrative claim with the Department of Veterans Affairs as required by the FTCA and therefore it dismissed his claim.

The court went on to note that even if Shake had filed an administrative claim with the Department of Veterans Affairs, his action still would fail because the FTCA bars suits for slander against the federal government. See 28 U.S.C. § 2680(h).

An essential requirement of any defamation action is that the alleged statement convey factual assertions. Pure expressions of opinion (i.e., those that neither state directly nor imply any assertion of objective fact) are protected by both the First Amendment and Section 12 of the Virginia Constitution. Whether a particular statement should be classified as fact or opinion is a threshold issue for the court to decide. Consequently, many libel and slander cases are dismissed at the outset and never reach a jury.

There's not always a bright line between the two, and sometimes courts get it wrong. Yesterday, the Virginia Supreme Court reversed the decision of a Halifax County court to dismiss a defamation action on the ground the statement constituted opinion and not fact. The statement at issue was this: "Tharpe told me that Tharpe was going to screw the Authority like he did Fort Pickett."

It's certainly tempting to treat a statement like this as opinion, because whether or not someone got "screwed" is subject to differing viewpoints. But look closely. The speaker is not making the claim that Tharpe screwed the Authority or screwed Fort Pickett. What he is saying is that Tharpe TOLD him these things. Tharpe's position in the trial court was that he never made such a statement. So the issue wasn't whether or not getting "screwed" is a matter of fact or opinion, but whether it was a factual assertion to claim that Tharpe made this particular statement. The Virginia Supreme Court held that it was "indisputably capable of being proven true or false."

The Virginia Supreme Court had not previously dealt with the issue of whether fabricated quotations might be actionable as defamation. Other courts, however, have supported the theory, and the Virginia Supreme Court found their reasoning persuasive.

The United States Supreme Court, for example, held in Masson v. New Yorker Magazine that falsely attributing a statement to another can harm that person's reputation regardless of whether the factual matters in the quoted statement are true or false. The false attribution can cause the public to infer the plaintiff has a particular attitude or character trait that can damage his reputation.

In the Masson case, a psychoanalyst was falsely quoted as stating that he was "the greatest analyst who ever lived." To determine whether the statement is actionable, it is not necessary to determine whether the psychoanalyst was, in fact, the greatest analyst who ever lived. Many would not want to associate with any analyst who would make such a bold and arrogant proclamation. Therefore, the harm to reputation lies in the false allegation that the analyst made the statement, and whether he made the statement is a factual matter capable of being proven.

The court noted in a footnote that there is no "wholesale defamation exemption" for statements of opinion because sometimes apparent expressions of opinion imply facts. While not discussed in the opinion, I think the alleged statement is particularly egregious because it attributes to Tharpe a statement that implies incriminating facts. If Tharpe had said that he had "screwed Fort Pickett," I would argue that such a statement implies that Tharpe--as a matter of fact--acted dishonestly, committed fraud, or otherwise cheated Fort Pickett in some way. A reasonable listener hearing the alleged statement might have formed these conclusions and not just understood Tharpe as expressing his personal opinion that Fort Pickett got a bad deal.

In any event, the court held it was error to sustain the demurrer and remanded the case to the trial court.

Workplace defamation suits will usually raise privilege issues. When one employee complains to a manager or supervisor about another employee and falsely maligns the other employee's reputation in the process, the court will need to sort out whether the complaint is protected by qualified privilege. If it is, the statement can't form the basis for a claim unless it was made with common-law malice or made to persons having no business hearing it. Common-law malice is different than the constitutional "New York Times" malice so often discussed in analyzing defamation liability. Common-law malice generally refers to some form of ill will on behalf of the speaker, motivated by things like hatred or a desire for revenge. In Virginia, there is a presumption that the speaker acted without malice.

When a slanderous statement occurs at work, it often involves an accusation that a co-worker is unfit to perform the duties of his or her job, due to a lack of competence or lack of integrity. Statements such as these which prejudice a person is his or her profession fall into the defamation per se category, which means that a jury can presume the statement was harmful to the plaintiff, even if special damages are not proven.

Earlier this month, a case from Stafford County was removed to federal court in Alexandria. Suzanne Brown, the plaintiff, was an FBI agent assigned to the Behavioral Analysis Unit (BAU) within the Critical Incident Response Group (CIRG). The BAU handles cases involving threatened violence against public officials, and as a program manager, Brown was responsible for assessing such threats. Katherine Schoeneman, the defendant, is a psychologist who had formerly worked with Brown on some threat assessment cases under a contract with CIRG. Schoeneman offered her psychological observations while Brown provided investigative and law enforcement expertise.

The Amended Complaint alleges that in January 2010, Schoeneman failed to review a file that Brown had given her in a timely manner. Schoeneman was irritated when Brown took the file back, and she feared the Department of Justice would not renew her contract if Brown complained that Schoeneman could not handle her workload. Schoeneman then allegedly made false reports to superiors, both oral and written, claiming that Brown made sexual advances toward her and engaged in other inappropriate conduct which raised doubts about Brown's judgment and fitness for duty. The FBI investigated Schoeneman's claims, and Schoeneman allegedly made additional unsolicited and irrelevant allegations regarding Brown's psychological health.

Brown's lawsuit includes separate counts for defamation, defamation per se, and intentional infliction of emotional distress. Brown claims that Schoeneman knowingly made defamatory statements and demonstrated a reckless disregard for the truth. In doing so, Brown asserts that Schoeneman willfully and maliciously sought to harm her and that the false statements imputed a lack of fitness to perform her work duties and called her character into question. Brown alleges that, due to Schoeneman's defamation, her reputation has suffered, and she has experienced a loss of income due to demotion and suspension. She also claims emotional distress including anxiety and depression, and physiological harm such as vomiting, insomnia and chest pain. Brown is asking the court to award her economic damages, non-economic damages, punitive damages, and her fees and costs.

Under Virginia law, the necessary elements of the tort of defamation (which includes both libel and slander) are usually expressed as (1) a publication about the plaintiff, (2) of an actionable statement, (3) with the requisite intent. This sounds simple enough, but proper application of these principles is far more complicated than one would expect. This is, in part, due to the fact that the test is circular, as it begs the question of what an "actionable statement" is. It is more useful to think of Virginia law of defamation as encompassing the following eight elements: (1) a factual assertion (as opposed to an expression of opinion); (2) that is false; (3) and defamatory in nature; (4) that is about the plaintiff; (5) and made to a third party; (6) in a setting or context that isn't privileged; (7) with the requisite degree of fault; (8) that causes actual reputational injury.

Element (6) refers to a defense, not an element of the plaintiff's proof, but I've included it in the list to clarify that an otherwise defamatory statement made in a privileged setting will not be actionable in a court of law. Furthermore, element (8)--harm to reputation--is presumed (and need not be proven) in those situations deemed to constitute "defamation per se."

Libel and slander will be considered "per se" defamatory if it (1) imputes the commission of a crime involving moral turpitude; (2) imputes that the person is infected with a contagious disease which would exclude the party from society; (3) imputes an unfitness to perform the duties of a job or a lack of integrity in the performance of those duties; or (4) prejudices the party in his or her profession or trade. Statements that might qualify as defamation per se include an allegation that one has acted unprofessionally, an attack on a person's honesty and veracity, a false report of a corporations' profit and earnings, a statement regarding a company's inability to pay bills, and a statement suggesting a person is an incompetent businessman.

To make things more confusing, some courts use "per se" and "per quod" to distinguish between words that are defamatory on their face and words which do not appear to be defamatory, but are defamatory by implication, or that become defamatory when additional facts are made known. (When used in this sense, defamation per se refers not to the list of the four most serious categories described above, but to words defamatory on their face). Whichever definition of "per se" is used, "per quod" is the catch-all phrase that basically means "not per se."

Hundreds of Virginia state and federal cases have struggled to apply the law of defamation in a manner consistent with the United States Constitution, as defamation cases necessarily involve a careful balancing of vital constitutional and common law rights. On the one hand, there is the First Amendment's fundamental protection of free speech. On the other hand, there is a common law obligation not to abuse the First Amendment with unjustified attacks against the reputation and dignity of others. Defamation law attempts to accommodate these seemingly antithetical interests by providing a legal remedy for persons subjected to false and defamatory statements while limiting the range of statements considered defamatory and actionable.

Not every unflattering or critical remark will constitute actionable defamation. Statements that are merely unflattering, annoying, irksome, or embarrassing, or that hurt the plaintiff's feelings, without more, are not actionable. To be defamatory, a statement must be more than merely critical; it must "make the plaintiff appear odious, infamous, or ridiculous." A defamatory statement is one that causes reputational harm to a plaintiff, holding the plaintiff up to scorn, ridicule, hatred, or contempt--in other words, the type of statement that would tend to deter third parties from dealing with the plaintiff. To assert a claim of defamation, a plaintiff must show that a defendant published such a statement, that it was both factual in nature and false, and that it concerns and harms the plaintiff or the plaintiff's reputation. A plaintiff in a Virginia defamation action must plead the statement with particularity, identifying the exact words claimed to be defamatory. Failure to allege the specific words claimed to be defamatory can lead to a dismissal of the case.

Expressions of opinion are also not actionable as defamation. Statements of opinion, as opposed to assertions of fact, are deemed privileged and no matter how offensive, cannot be the subject of an action for libel or slander. This is because a statement of opinion is not an assertion of fact that can be proven false, and falsity is a required element of a defamation claim. Statements of opinion are also protected by the First Amendment's guarantee of freedom of speech. Distinguishing fact from opinion is not always easy. Courts need to examine whether the specific language has a precise meaning, whether the statements are capable of being proven true or false, and whether the context in which the communication was made affects the meaning of the statement.

Statements expressed in factual language but which would not be reasonably understood as an assertion of fact are not actionable. Rhetorical hyperbole, for example, is generally not interpreted literally, and therefore cannot support a defamation action. For example, defamation cases have been dismissed in Virginia where a talk show host said a government contractor had employees in Iraq who were "all over the country, killing people," and where a newspaper article referred to a university official as the "Director of Butt Licking." These statements were not literally true, but could not reasonably be understood as conveying actual facts. Other examples include parody, gross exaggeration, sarcasm, and irony.

Conversely, statements expressed in language suggesting mere opinion may nevertheless be treated as implied statements of fact if the statement suggests the speaker's opinion is based on the speaker's knowledge of undisclosed facts. Such statements may be actionable not because they convey "false opinions," but rather because a reasonable listener or reader would infer 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. In other words, a statement of opinion that is based on undisclosed facts is potentially actionable because it carries with it an implicit statement of those facts.

Statements that are only partially false may not be sufficient to support a claim of libel or slander. If an allegedly defamatory statement is substantially true, it will usually be enough to defeat a defamation action. Substantial truth turns on the understanding of the reasonable listener or reader. In general, a statement is substantially true if the statement would not have a different effect on the mind of the reader from that which the complete truth would have produced. In other words, it is not necessary to demonstrate complete accuracy to defeat a charge of defamation. It is only necessary that the gist or substance of the challenged statements be true.

Celebrities, politicians, and other public figures have a higher burden in defamation actions. The First Amendment requires that in defamation actions brought by public figures, the plaintiff must prove that the allegedly defamatory statement was made with "actual malice," meaning that it was made "with knowledge that it was false or with reckless disregard of whether it was false or not." Hatfill v. The New York Times Co., 532 F.3d 312, 317 (4th Cir. 2008). Where a statement on a matter of public concern expresses or reasonably implies false and defamatory facts regarding public figures or officials, those individuals must show that such statements were made with knowledge of their false implications or with reckless disregard of their truth.

Virginia defamation law is vast and complex. For more information, or to discuss the application of the law to a particular set of facts, consult a defamation attorney.

Judicial privilege (also known as judicial immunity) allows a party to litigation or other judicial proceeding to make statements during the course of the proceeding that would otherwise be considered slanderous or libelous. The Virginia Supreme Court recently held that judicial privilege will also apply to certain statements made in advance of such proceedings where the following conditions are met: (1) the statement is made preliminary to the proposed proceeding; (2) the statement is material, relevant or pertinent to the proceeding; (3) the proceeding is contemplated in good faith and is under serious consideration; and (4) the communication is disclosed only to persons having an interest in the proposed proceeding. The Circuit Court of Loudoun County had occasion to apply the test in Hubbard v. Goehring.

Deanne Hubbard managed Jack and Mary Goehring's rental properties. Ms. Hubbard and her family also occupied commercial and residential properties owned by the Goehrings. Mr. Goehring filed a criminal theft affidavit against Ms. Hubbard alleging identity theft, fraud, embezzlement and bank fraud. The Goehrings told the Assistant Commonwealth's Attorney that they intended to file civil charges against Ms. Hubbard. Mr. Goehring found out when Ms. Hubbard would be arrested and arranged for a photographer to photograph the arrest. The pictures were published on the front page of a local newspaper, on the evening news and on YouTube. Ms. Hubbard was acquitted of embezzlement charges, and she and her family brought a defamation action against the Goehrings. The Goehrings contend that statements made to the public prosecutor and police regarding Ms. Hubbard's alleged criminal activity are subject to the judicial privilege.

Relying on the Restatement (Second) of Torts, the court added a good-faith requirement to the immunity test, finding that in addition to the elements laid out by the Virginia Supreme Court, good faith is required on the part of the private individual bringing the criminal charges and that such good faith must persist throughout the prosecution.

The court noted that the many alleged false and defamatory statements about Ms. Hubbard were made to a variety of individuals in various contexts. Some of the alleged activity--such as arranging for the photographing of the arrest and the publication of the photographs-- went beyond relevant material for a criminal complaint and arguably lacked the good faith required for application of the privilege. Other alleged statements, the court found, were clearly relevant to the proposed proceeding and "may not be so limited by the issue of relevancy to the ongoing criminal investigation and prosecution."

The court declined to apply the privilege to any of the alleged statements as a matter of law, but kept the door open to make such a ruling at a later date, after the close of discovery. While overruling the plea in bar to the defamation claim, the court ruled expressly that the defendants could raise the issue of privilege again as to specific statements after the discovery phase of the litigation was complete.

Emmett Jafari sued the Greater Richmond Transit Company for defamation and retaliation under the Fair Labor Standards Act. Jafari was a Specialized Transportation Field Supervisor for a Virginia company that transported clients enrolled in a state economic program. John Rush, a GRTC driver, told Jafari's Chief Operating Officer, Eldridge Coles, that (1) he had seen Jafari in a heated discussion with a client in front of her home and (2) when the client boarded the van, she said Jafari had told her, "If you have something to say, say it to my face." Coles allegedly told Jafari's supervisor, Von Tisdale, "a customer had complained that Mr. Jafari told her 'if you have something to say, say it to my face.'" When Jafari was later fired, he sued, alleging Coles' statement to Von Tisdale was defamatory.

In Virginia, defamation requires (1) a publication, (2) an actionable false statement, and (3) negligence or malicious intent (depending on the circumstances). Statements made between co-employees and employers in matters pertaining to employee discipline and termination enjoy a qualified privilege, which insulates those statements from liability unless they are made with malice or shared with people (including fellow employees) who have no duty or interest in the subject matter. If a defendant makes a statement within the scope of a qualified privilege, then the statement is not actionable, even if false or based on erroneous information. The law presumes absence of malice.

To defeat this privilege, Jafari had to show, with "clear and convincing" evidence, the statements met the common law malice requirement, i.e., that they were said with "some sinister or corrupt motive such as hatred, revenge, personal spite, ill will, or desire to injure the plaintiff; or ... made with such gross indifference and recklessness as to amount to a wanton or willful disregard of the rights of the plaintiff." This he could not do, so the court entered summary judgment in favor of the employer.

Jafari claimed Coles' motivations included racial animosity and the desire to humiliate him and that Coles set out to solicit negative information about him from others. Weighing the submissions under summary judgment standards, the Court found Jafari's claims did not demonstrate malice. Coles and Von Tisdale were supervisors with a duty to monitor and manage employee performance and Coles had only repeated the information to others in Jafari's supervisory chain with similar monitoring and management duties. These people were protected by qualified immunity.

Jane Perez hired Dietz Development to repair her townhome. When Perez became dissatisfied with Dietz's performance, she fired Dietz and posted negative online reviews on both Yelp and Angie's List. Her comments not only expressed her dissatisfaction with Dietz's work but also implied that Dietz was responsible for some jewelry missing from Perez's home. Dietz sued Perez for defamation in Fairfax County Circuit Court and requested a preliminary injunction ordering her to remove the statements.

Perez opposed the injunction but apparently did not argue that an injunction would be an impermissible "prior restraint" under the First Amendment. The trial judge gave Dietz a partial victory, enjoining any discussion of the missing jewelry and ordering Perez to delete certain misleading statements she had made about a related lawsuit. Perez filed a motion for reconsideration in which she raised the prior-restraint issue, and appealed to the Supreme Court of Virginia shortly thereafter. Remarkably, the Supreme Court vacated the injunction just two days after the petition for appeal was filed and without even giving Dietz an opportunity to respond.

The First Amendment prohibits prior restraints on speech unless publication would threaten an interest more fundamental than the First Amendment itself. Perez argued that Dietz's reputation as a businessman in the community does not rise to that level of importance. She also argued that although some jurisdictions allow an injunction against comments that have been found false and defamatory after a full trial, injunctions against speech that has not been found to be false and defamatory are never appropriate.

Perez noted that the issue of prior restraints in a defamation case is one of first impression in Virginia. However, the Court of Appeals has invoked the common law rule that "equity will not enjoin a libel" because there is usually an adequate remedy at law. Here, Dietz could recover post-publication damages if it proves that Perez's statements were false and made with actionable negligence or malice. Finally, Perez contended that the injunction was overbroad in that it forbade her from making even truthful statements about the loss of her jewelry.

The Supreme Court of Virginia invalidated the injunction because it did not specify a time limit and because "the preliminary injunction was not justified and . . . the respondents have an adequate remedy at law."

Dietz can continue to pursue its claims for damages but Perez's comments--even those claimed to be defamatory--will remain online.

Panamanian lawyer Juan Carlos Noriega has brought a defamation suit in the District of Columbia against the Huffington Post for falsely attributing to him an "offensive" article he claims he had nothing to do with. The article, entitled "The Primacy of the Rule of Law," (which has since been removed from the site) concerned a "fake vaccination program" that the Central Intelligence Agency ran in order to gather information on Osama Bin Laden. The CIA relied on Dr. Shakeel Afridi to run the vaccination program, and when he was arrested, the United States government called for his release.

The article claimed that the United States' outrage over Dr. Afridi's arrest was inconsistent with every nation's basic commitment to the rule of law, and that the United States' demand that Afridi be released showed a disregard for Pakistan's democracy and jurisprudence. The article suggested that Afridi had violated the Hippocratic Oath and that, because of the fake campaign, Pakistani parents had become skeptical of vaccinations and were refusing to immunize their children. The article asserted that thousands of innocent Pakistani children may be crippled for life with polio or die from hepatitis because of the vaccination scheme. A link to the article revealed a short biography and picture of Noriega and listed him as one of "HuffPost's signature line up of contributors."

Noriega claims he has never written anything for the Huffington Post. He says he's never even submitted a comment on the site or created an account. According to the complaint, The Huffington Post did not contact Noriega before publishing the article, and when Noriega's counsel informed the Huffington Post that he had been a victim of identity theft and asked it to remove the article, the Huffington Post did not respond. Noriega asserts that the Huffington Post maliciously and negligently published the article and attributed to him "highly offensive and defamatory beliefs" concerning terrorism, Pakistan, bin Laden, the U.S. government and the CIA that he does not hold.

Noriega contends that the article has damaged his personal and business reputation, has caused him serious emotional distress, embarrassment and personal humiliation and has jeopardized his immigration status. The complaint asks for $3 million in damages, a retraction, and an investigation into the identity theft. The court is going to have to decide whether falsely attributing certain controversial beliefs to a person can be considered defamatory as a matter of law.