The tort of defamation is widely misunderstood. Social media outlets like Facebook, LinkedIn and Twitter, which allow easy publication and dissemination of information to a wide audience, are leading to a rise in defamation lawsuits in Virginia and around the country. To be insulted by another, especially when it happens in a public forum, can be hurtful and embarrassing. Whether the insult constitutes actionable defamation under Virginia law, however, or whether it is sufficient to satisfy Virginia's "insulting words" statute, can present some complicated issues, often implicating the United States Constitution. Relevant considerations for any lawyer examining a defamation claim include the type and context of the speech, the identity of the speaker, the identity of the plaintiff, and the existence of qualified immunity or other defenses.
In Virginia, defamation includes both libel (written defamation) and slander (spoken defamation). There is no need for clever mnemonic devices to distinguish libel from slander, because Virginia law makes no meaningful distinction between the two and speaks only of the merged tort of defamation. The essence of any defamation claim is that a defendant published a false factual statement that concerns and harms the plaintiff or the plaintiff's reputation. While it is common to recite that "truth is a defense," that is not technically true, as falsity is a required element of the plaintiff's proof.
Proof of several elements is required. The defendant must know that the statement was false or must have lacked a reasonable basis for believing it to be true. Defamatory words that cause prejudice to a person in her profession are actionable as defamation "per se," meaning that it is not necessary to prove actual injury to reputation. Expressions of opinion, however, are constitutionally protected as free speech. Therefore, mere statements of opinion cannot form the basis of a defamation lawsuit.
The "publication" requirement means that the remarks were heard by a third party who understood the remarks as referring to the plaintiff in a defamatory sense. This is a fairly easy standard to meet (assuming a defamatory statement), as even accidental publication will suffice.
The Constitution plays two parts in the defamation analysis. First, it gives higher protection to those who speak on matters of public concern or about public figures. When an ordinary person brings a defamation claim that concerns a statement of no public concern, he only needs to prove the requisite elements by a preponderance of the evidence. When the plaintiff is a public figure (e.g., a celebrity or public officeholder), or when the statement at issue was one of public concern, then the bar is raised. The plaintiff would then need to prove, by "clear and convincing" evidence, that the defendant acted with actual malice. A defendant acted with actual malice if he knew the statement to be false or recklessly failed to verify the claim. "Clear and convincing" evidence is difficult to define but is a higher level of proof than a mere "preponderance." (You can think of it as requiring 75% certainty rather than 51% certainty, though that is not the legal definition).
The second constitutional requirement is that punitive damages may only be awarded upon the same clear and convincing finding of actual malice regardless of who the plaintiff is or if the statement was one of public concern.
The law of libel and slander is far too complicated to discuss in this small space. Consult an attorney if you have been the subject of defamatory speech, especially if your business or profession is being harmed as a result.