Defamation by Implication in Virginia

February 13, 2012

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.

In Virginia, before a defamation claim will get to a jury, a judge will need to make a threshold determination regarding whether the statement in question can be reasonably interpreted as defamatory under applicable legal principles. A statement you might interpret as defamatory isn't going to cause much damage to your reputation, and therefore will not support a defamation claim, if people reading or hearing the statement don't understand what it means. Sometimes, the context in which a statement is made makes all the difference as to how it will be interpreted and understood. When considering all the surrounding facts and circumstances, an undeniably true statement may nevertheless convey a false and defamatory impression.

This is where inferences come into play. Sometimes the true meaning of a statement comes not only from the actual words spoken, but from inferences fairly attributable to those words. In other words, a defamatory statement can be expressedmisdirection.jpg indirectly rather than directly. Determining whether an implied statement is capable of supporting a defamation claim can be tricky.

In Louisa County Circuit Court, Judge Sanner was recently called upon to analyze the following statement: "I personally did not inspect the retaining wall but I relied on Allen Roger's description of the wall's construction when I prepared the letter." To readers not familiar with the circumstances of the case, or the context in which the statement was made, the statement does not appear to convey a defamatory meaning. Judge Sanner, however, applying the defamation by implication rules, found that the statement was capable of supporting a defamation action and allowed the claim to go forward.

Examining the context of the alleged statement, the court found that the statement "can be understood as alleging that Sulzen is contending that the plaintiff who constructed the wall and who would be familiar with its construction, knowingly misrepresented the nature of the faulty construction, inferentially for purposes of passing any inspection conducted by Sulzen." Thus, while the alleged statement may have been literally true, the court found that it could nevertheless reasonably be understood to convey a false and defamatory implication, harming the plaintiff's reputation.