The Virginia Defamation Law Blog

January 23, 2017

Virginia’s Self-Defense Privilege

Clever defamation lawyers seem to have developed a new technique for bringing lawsuits against the rich and powerful. Step One: Announce to the world that a public figure has mistreated you in some way. Step Two: Wait for the public figure to issue a statement disputing your story and proclaiming innocence. Step Three: Sue the public figure for defamation on the theory that the public figure falsely communicated to the public that you are a liar. Sound familiar?

In 2005, California lawyer Tamara Green told the Today Show that Bill Cosby drugged and groped her. Years later, speaking to Newsweek, Cosby’s publicist responded to Green’s accusation as follows: “This is a 10-year-old, discredited accusation that proved to be nothing at the time, and is still nothing.” Ms. Green then sued Cosby for defamation, complaining that “in an effort to continue the public branding of [Green] as a liar, Defendant Cosby…stated explicitly, stated in effect, stated by innuendo, implied, and/or insinuated, that Defendant Cosby’s drugging and sexual assault against Plaintiff Green never occurred, and therefore that Plaintiff Green lied and was a liar.”

December 7, 2016

Isn’t Fake News Defamation?

by Lee E. Berlik

With all the hand-wringing over fake news these days, many are wondering whether it isn’t actionable libel to publish false news accounts. Take “Pizzagate,” for example. Shortly before the election, rumors began circulating on the Internet that Hillary Clinton and her former campaign manager, John Podesta, were running a child sex-slave operation in the back of family-friendly Washington pizzeria Comet Ping Pong. As ridiculous as that sounds, the message reached a massive audience on social media and before long, the restaurant was receiving death threats and other threatening messages on Instagram, Facebook, and Twitter. People started trashing the business on Google and Yelp. Eventually, a young man from North Carolina traveled to the restaurant to personally investigate the story and rescue any sex slaves in need of his assistance. He brought an assault rifle with him. It’s probably safe to assume that Comet’s business has suffered.

If Hillary Clinton is running a child sex-slave ring, she isn’t doing it at Comet Ping Pong: the story was pure fiction. So what’s a business like Comet to do? Defamation claims are usually about the protection of individuals’ personal reputations. In this situation, false news articles were being published about Comet’s business itself rather than about any particular individual associated with the business. In short, it doesn’t matter. Corporations are treated like people in most contexts, and this one is no different. Comet could conceivably sue for trade libel, common-law defamation, tortious interference, or business conspiracy, among other claims. Let’s focus on the commercial defamation angle.

November 17, 2016

What Is Defamatory Meaning?

by Lee E. Berlik

When I wrote about the elements of defamation back in 2013, I noted that one of the requirements for a successful defamation action is that the statement at issue be “defamatory in nature.” In other words, to be actionable, that statement must convey a defamatory meaning to the reader or listener; it cannot be merely insulting or provocative. What does it mean to be defamatory? The definition varies from state to state. In New York, a defamatory statement is one that exposes an individual “to public hatred, shame, obloquy, contumely, odium, contempt, ridicule, aversion, ostracism, degradation, or disgrace, or…induce[s] an evil opinion of one in the minds of right-thinking persons, and…deprives one of…confidence and friendly intercourse in society.” (See Celle v. Filipino Reporter Enterprises Inc., 209 F.3d 163, 177 (2d Cir. 2000)). Here in Virginia, defamatory words are those “tend[ing] so to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him.” (See Schaecher v. Bouffault, 290 Va. 83 (2015)). Words that rise to this level have been said to carry the requisite degree of “defamatory sting.”

Regardless of which state’s definition is applied, statements that tend to expose another to hatred, ridicule, or contempt are generally considered defamatory in nature. Disparaging statements about another’s moral values, personal integrity, or financial standing may fall into this category. Note, however, that although cases often recite that being made to look “ridiculous” in the community is sufficient to convey defamatory meaning, defamatory meaning is just one element of a defamation action. The tort of defamation also requires a false statement of fact. Therefore, not every statement that tends to expose another to public ridicule will be actionable in court.

October 28, 2016

Former Boss Fired You But Tells People You Quit: Not Defamatory

by Lee E. Berlik

In an opinion published earlier this week by a federal court in Alexandria, the court analyzed a defamation claim brought by a sales representative against her former employer, manufacturer of the Mammotome breast biopsy system. Her former supervisor, after terminating her employment, had met with her largest customer to introduce her replacement to them, and when asked about her whereabouts, the supervisor responded that the employee had “up and left” and added that she was “not a closer.” The customer was not pleased, as they had held the employee in very high regard, and when they heard the news that she had parted ways with the manufacturer, they reached out to her and helped her land a job with another medical device company. The employee was also not pleased when she heard this, and she sued her old boss for defamation. The court denied her claim and entered summary judgment in favor of her former employer.

The case is Jasna Kuhar v. Devicor Products, Inc. The first statement at issue was that of Ms. Kuhar’s former supervisor, Joseph Baia, who told the customer that Ms. Kuhar had left Devicor voluntarily, without giving prior notice (which is how the court interpreted the “up and left” statement). As a preliminary matter, the court noted that this was a statement of fact, capable of being proven true or false (which is a prerequisite for defamation liability). The court disagreed, however, with Ms. Kuhar’s argument that the statement was “per se” defamatory in that it disparaged her qualifications as a sales representative. Ms. Kuhar presented no evidence to suggest that immediate resignation was frowned upon in the sales profession. (And at-will employees have the right to resign without giving advance notice). Here, Ms. Kuhar’s offer letter stated expressly that “Your relationship with the Company will therefore be at-will, which means you or the company may terminate your employment at any time, with or without cause or notice.” The court also noted that the undisputed evidence not only showed that the statement had not prejudiced her in her profession or trade, but that she had not, in fact, suffered any damage. Her customers testified that they continued to hold her in high regard, and even helped her find another job.

September 30, 2016

Limited Purpose Public Figures Must Prove Malice

by Lee E. Berlik

Since the Supreme Court decided the seminal Curtis Publishing case back in 1967, public figures have played an important role in U.S. defamation jurisprudence. That case held that it should be more difficult for public figures to sue for libel and slander than ordinary private citizens, because if public figures have voluntarily thrust themselves “into the vortex” of a public debate, they should assume that they may become the subject of public discussion and should be willing to accept the risk that on occasion, less-careful fact-checkers may say certain things about them that aren’t true. Therefore, although private citizens will only need to demonstrate negligence to recover damages caused by defamation, public figures need to prove the defendant either knew he or she was spreading false information, or acted with reckless disregard for whether the information was true or false. This heightened level of wrongful intent is known as malice.

Some erroneously equate public figures with celebrities. In reality, the level of fame a plaintiff needs to achieve before being categorized as a “public figure” by a Virginia court is much lower than that of household-name celebrities. Moreover, courts recognize “limited purpose” public figures and subject them to the same obstacles regular all-purpose public figures face when the alleged defamation is based on the subject matter of their public participation and involvement.

September 14, 2016

Defamation By Video Manipulation: the Couric Case

by Lee E. Berlik

They say a picture is worth a thousand words. They also say the camera doesn’t lie. Remember, though, that photographs and videos can be altered in a variety of different ways, and when the alteration conveys a false and defamatory impression, the manipulated images can be actionable in a court of law.

In the case filed yesterday against Katie Couric, what essentially happened is this: Couric is the Executive Producer of a documentary on gun violence called Under the Gun. She invited members of the Virginia Citizens Defense League, a gun-rights organization, to be interviewed on camera. At one point in the film, she is shown asking the group this common question on the subject of background checks: “If there are no background checks for gun purchasers, how do you prevent felons or terrorists from purchasing a gun?” The various representatives of the VCDL sit in stunned silence and look away, as if they had never considered the question before. The camera then cuts away, leaving the viewer with the impression that none of the interviewees were able to come up with a single answer.

September 13, 2016

Rolling Stone Article Sufficiently “Of and Concerning” Phi Kappa Psi to Survive Dismissal

by Lee E. Berlik

When U.S. News asked me last year to comment on Phi Kappa Psi’s plans for a defamation lawsuit against Rolling Stone, I responded that one of the first obstacles the fraternity would have to overcome would be to persuade the court that the article was “of and concerning” PKP as an institution and that it was not just about the individual perpetrators. The “of and concerning” test refers to the principle that a person suing for defamation needs to demonstrate that the defamatory words at issue referred to him or her (or it) specifically, either directly or by implication. That obstacle has now been overcome, as Judge Richard E. Moore of the Charlottesville Circuit Court has ruled that the article is reasonably capable of being interpreted as conveying defamatory allegations against Phi Kappa Psi. He overruled Rolling Stone’s demurrer and has allowed the case to proceed. It will ultimately be up to the fact-finder to determine whether the article is defamatory with respect to the fraternity.

Under Virginia law, a complaint for defamation must show on its face that the alleged defamatory statements are “of and concerning” the plaintiff. A plaintiff satisfies the “of or concerning” test if he shows that the statement was intended to refer to him specifically and would be so understood by persons reading it who knew him. Gazette, Inc. v. Harris, 229 Va. 1, 37 (1985). Whether a statement may reasonably be interpreted as “of and concerning” a plaintiff is a question of law to be decided by the court. If a statement cannot be so interpreted in the opinion of the judge, the case will be dismissed at the outset. But if the court finds a reasonable jury could conclude that the defamatory statement relates to the plaintiff, the court will allow the case to proceed to trial. That is what has happened in the Phi Kappa Psi case.

July 26, 2016

No Personal Jurisdiction in Virginia Without Purposeful Targeting of Virginia Readers

by Lee E. Berlik

Just last week I wrote about a Virginia state-court case that dealt with the issue of whether sending electronic data through a Virginia server (which often happens when defamation is posted online) could satisfy the “minimum contacts” test needed to establish personal jurisdiction. Two days after I posted that article, a federal case from the Eastern District of Virginia was decided in which a federal judge grappled with the exact same issue. In both cases, the courts reached the same conclusion: in cases of online defamation, personal jurisdiction requires more than merely posting comments hosted on a server that happens to be based in Virginia, or which sends data through a Virginia-based server on its way to the Internet. Due process is not satisfied without purposeful targeting of a Virginia audience.

The federal case is FireClean, LLC v. Andrew Tuohy. According to the allegations of the complaint, the facts are essentially these: FireClean manufactures a gun-cleaning oil it claims reduces carbon residue buildup in firearms. It is made of a blend of at least three natural oils derived from a plant, vegetable, fruit, shrub, flower, or tree nut. Beginning around August 2015, various gun-themed blogs started publicizing that FireClean was really nothing more than “Crisco” or other common vegetable oil. The maker of a competing gun oil posted a video online purporting to prove that FireClean was “pretty much a Crisco oil.” The Vuurwapen Blog took an interest in this allegation and decided to further investigate.

July 19, 2016

Use of Virginia Computer Network Won’t Necessarily Confer Jurisdiction Over Nonresident

by Lee E. Berlik

In cases of Internet defamation, the issue of personal jurisdiction comes up a lot. “Personal jurisdiction” refers to a court’s authority to make rulings that affect a person. This isn’t an issue when two Virginia residents are in litigation with each other, as state courts have the power to enter rulings that affect their residents, but when a Virginia resident files a libel lawsuit in Virginia against someone who doesn’t live here, a preliminary issue arises with respect to whether the Virginia court has the power to enter a judgment against the nonresident. If the court lacks personal jurisdiction over the defendant, the case will be dismissed. When defamatory statements are published online and are therefore accessible all over the world, Virginia courts struggle with trying to sort out whether it is constitutionally permissible to assert authority over a writer who has never stepped foot in Virginia.

The basic analysis requires two steps. First, the court must determine whether Virginia’s “long-arm statute” reaches the defendant. (Think of this law as one that describes the circumstances under which the state can reach out with a “long arm” to grab a defendant residing in another state and pull him into Virginia to require him to defend against a lawsuit). Next, assuming the long-arm statute does apply, the court must ensure that exercising personal jurisdiction over that defendant complies with the Due Process Clause of the United States Constitution.

July 8, 2016

How to Write a Scathing Online Review Without Getting Sued

by Lee E. Berlik

Yes, the First Amendment protects your right, as a consumer, to express your personal opinions about any business you ordered products or services from, no matter how unfavorable those opinions may be. The First Amendment also protects your right to express those opinions anonymously, so if you’d rather not tell the whole world that you had a bad experience with the customer-service representative at Ashley Madison, the law allows you to post an unfavorable review of the company without revealing your real name. Still, despite the abundance and convenience of online review sites like Yelp, TripAdvisor, Google+, and Angie’s List, many consumers are reluctant to share negative experiences on these sites. Why? They worry about being sued for defamation. They read about aggressive businesses who bury non-disparagement clauses in form contracts and who file multi-million-dollar libel and slander claims in far-flung jurisdictions, based solely on a negative Yelp review. So they keep their opinions to themselves, depriving the consuming public of the benefit of their experiences. (This is known, incidentally, as a “chilling effect”).

Unfortunately, if you rip into a shady business with a scathing (and well-deserved) online review, there is always a possibility that the business will sue you for defamation. These claims are often frivolous and filed only as an intimidation tactic, but they are a pain to deal with nonetheless. Still, when a business deserves a one-star review, and has dealt with you in such a way that you feel an obligation to warn other consumers about the business, you can still write that scathing review with little risk of retaliation. Here are five considerations to keep in mind as you write that review: