Recently in Defamation by Implication Category

Familiar Rhetorical Devices May Not Carry Defamatory Meaning

August 11, 2014,

Extortion is a crime. Statements that falsely accuse another of committing a crime often constitute defamation per se in Virginia, particularly where the crime is one involving "moral turpitude." Does it follow, then, that false accusations of extortion will automatically qualify as defamation per se? The answer, which will undoubtedly surprise many of you, is no. The reason lies in the importance of context in defamation actions.

A good illustration comes from the Tenth Circuit, which issued its decision in Hogan v. Winder a few days ago. Chris Hogan worked as a consultant for the Utah Telecommunications Open Infrastructure Agency ("UTOPIA"), a state agency charged with upgrading high-speed Internet access. In the spring of 2011, Hogan began to suspect that UTOPIA's executive director unfairly favored a bid for a contract from the company where the director's brother worked, and he expressed his suspicions to UTOPIA's plant manager. He was terminated shortly thereafter. Believing that his termination was retaliatory, he hired a lawyer and sent UTOPIA a draft complaint along with certain settlement demands, pointing out that the public scrutiny that would result from filing the lawsuit would essentially destroy the company. In a response, UTOPIA's attorney characterized Hogan's demands as "extortion" and "blackmail."

Both sides filed lawsuits, and the dispute gained some local press coverage. One headline read, "Former UTOPIA contractor accused of extortion." The article that followed quoted UTOPIA's Chairman as citing "performance issues" as the reason for Hogan's termination. The article also reported on Hogan's accusations of conflicts of interest and mismanagement at UTOPIA. Hogan sued for defamation, claiming that the articles caused him emotional distress and prevented him from finding employment in the telecommunications industry.

The case was decided under Utah law, but the principles of defamation law on which the case was decided are substantially the same here in Virginia. As in Virginia, for example, defamatory meaning depends on the context in which the statement was made. Citing an opinion from the Utah Supreme Court, the Tenth Circuit explained that jail.jpg"words that appear at first blush to convey a defamatory meaning may be explained away as innocuous when their context is made clear. Conversely, words innocent on their face may, when explained in context, convey a defamatory meaning."

The job of the appellate court is to conduct a context-driven assessment of the alleged defamatory statement and reach an independent conclusion about the statement's susceptibility to a defamatory interpretation. If the context makes clear a reasonable reader would not accept the statements at face value, the statements do not harm reputation and therefore are not defamatory as a matter of law. In evaluating the context of a media report, the court held, courts should examine (1) the words themselves and their implications; (2) the entire article or message; (3) the events or disputes that gave rise to the article; and (4) the likely effect on the reasonable reader.

Hogan argued that the reports that he was "accused of extortion" suggested falsely that he had been accused of committing a crime and were therefore defamatory. Both the district court and the Tenth Circuit disagreed, noting that accusations of "extortion" are a familiar rhetorical device. As such, depending on context, such accusations are often not interpreted literally. The court noted that the article in question reported accurately that the statement was made by UTOPIA's lawyer in a letter to opposing counsel discussing the parties' employment dispute. In that context, the court found that no objective reader would believe that Hogan had committed a crime. Rather, most would recognize the statement as mere hyperbole and rhetorical flourish made in the context of a heated disagreement.

The court also rejected Hogan's argument that he was defamed by the headline. While recognizing that many people would stop reading at the headline and would not bother to read the explanation provided in the accompanying article, the court nevertheless found that it was obvious from the headline that there was more to the story, and that the full context of the statement would be provided in the body of the article. The result might be different (i.e., a headline might conceivably support a defamation when read in isolation) if the headline was disloyal to the article it advertised, but Hogan had made no such allegations. The court therefore affirmed the dismissal of the claim.

Forced Apology and Admission of Inappropriate Conduct Held Not Defamatory

July 14, 2014,

Defamation claims arise frequently in employment settings. Employees often disagree with their performance reviews and, if they feel particularly aggrieved, resort to the courts to extract a modicum of revenge. Unfortunately for them, statements relating to employee discipline and termination made by managers and supervisors usually enjoy a qualified privilege against defamation claims. The privilege generally insulates such statements from liability absent clear and convincing evidence of malice or some other indicator that the privilege has been abused. When an employer makes a false and defamatory statement about an employee, but that statement is protected by a qualified privilege that has not been lost or abused, the statement is not actionable.

Of course, before the question of privilege even comes into play, there is the matter of whether the statement at issue is defamatory in the first place. In Regina M. Zarrelli v. City of Norfolk, Ms. Zarrelli sued the City of Norfolk, Virginia (her former employer) along with the City's Commonwealth's Attorney, Gregory D. Underwood, based in part on being required to apologize to a vendor. It didn't work, and the case was dismissed both because the statements were not defamatory, and because even if they were, they were protected by qualified privilege.

Zarrelli worked in the Office of the Commonwealth's Attorney and was assigned to the Victim/Witness Assistance Program. On May 4, Underwood reprimanded Zarrelli for violating office policies regarding travel accommodations for non-local victims and witnesses. Zarrelli had allegedly made repeated requests of the Office's travel vendor thatjobless.jpg a rental car be added to a particular witness' travel itinerary despite the Office's Travel Coordinator's repeated cancellation of the rental and instruction from the Deputy Commonwealth's Attorney that witnesses are separately responsible for this kind of transportation. Describing Zarrelli's behavior as "counterproductive and undermining," he suspended her without pay for two days, placed her on probation for one year, and required her to draft a letter to a travel vendor explaining the proper policy regarding rental cars while acknowledging her own "inappropriate" conduct.

She wrote the required letter, but in a matter the court found "dismissively insubordinate," expressing to the vendor that she disagreed that she had acted inappropriately and that she was being forced to write the letter. She was fired the same day.

Zarrelli argued that being forced to write the letter constituted defamation per se because it damaged her professional integrity and hindered her ability to obtain employment elsewhere. The court rejected this, pointing out that "in Virginia, a false statement is not, in and of itself, actionable. That statement must also be defamatory." In other words, to be actionable, a statement must be defamatory in the first instance before it will be considered defamatory per se.

The court also explained that speech will not be actionable if it does not contain a provably false factual connotation or language that can reasonably be interpreted as stating actual defamatory facts about a person.

The court found that the statements at issue did not falsely portray Zarrelli in a damaging light and were not actionable. "At most," the court held, "they reveal her disagreement with Underwood about the rental car policy, and subsequent refusal to follow his direction - facts which she does not contest." The court rejected Zarrelli's argument that the statements could be reasonably interpreted as an implication that Zarrelli was guilty of financial impropriety.

Finally, because Zarrelli failed to show that the defendants acted with some sinister or corrupt motive such as hatred, revenge, personal spite, ill will, or desire to injure the plaintiff, the court found that the qualified privilege had not been lost or abused. The case was therefore dismissed.

Implication Not Defamatory if Not Reasonably Drawn

January 10, 2014,

The Supreme Court of Virginia issued an opinion today in which it addressed the concept of defamation by implication. Building on its 1954 decision in Carwile v. Richmond Newspapers, the court reiterated that although defamatory meaning can sometimes be implied with literally true statements, the inferred meaning cannot be extended beyond the ordinary and common acceptation of the words used. Innuendo cannot be used to introduce new matter or extend the meaning of the words used by the speaker. In short, "the alleged implication must be reasonably drawn from the words actually used."

In Webb v. Virginian-Pilot Media Companies, LLC, Phillip D. Webb, an assistant principal at Oscar Smith High School in Chesapeake, sued Virginian-Pilot and reporter Louis Hansen for its handling of a story about the school's disciplinary process. Webb's son, a student of a neighboring school where Webb previously coached pole vaulting, had been charged with a felony for assaulting another student's father but received no punishment from the school. Webb's lawsuit acknowledged that the reporting of the story was truthful, but claimed that the story implied that Webb abused his position of authority to obtain preferential treatment for his son. Webb argued that when the reporter wrote that the student "did not get preferential treatment because of his dad's position," the implied meaning was "exactly the opposite." The court did not agree.

While acknowledging that the article insinuated that Webb's son may have benefited from special treatment, the court held that there was nothing in the article to suggest that Webb solicited or otherwise procured such treatment. Therefore, the article was not reasonably capable of the defamatory meaning Webb ascribed to it and Jury.jpgthe jury should never have been permitted to even consider the claim.

Trial courts perform an essential threshold, gatekeeping function when it comes to defamation claims. Their job is to determine, as a matter of law, whether a statement alleged to be defamatory is reasonably capable of the defamatory meaning the plaintiff ascribes to the statement. This function, the court held, is to ensure that "defamation suits proceed only upon statements which actually may defame a plaintiff, rather than those which merely may inflame a jury to an award of damages." If the inference urged by the plaintiff cannot be reasonably drawn from the actual words used, the trial court should sustain any demurrer filed and dismiss the case. In this particular case, the trial court failed to do that, which decision the Virginia Supreme Court held to be in error.

Yasser Abbas' Defamation Lawsuit Dismissed on Anti-SLAPP Grounds

October 7, 2013,

The District of Columbia's anti-SLAPP act applies to actions that arise from an act in furtherance of the right of advocacy on issues of public interest. It provides that if a party makes a prima facie showing that the case involves the type of claim to which the act applies, the court will dismiss the case--with prejudice--unless the responding party can demonstrate that the claim is likely to succeed on the merits. D.C. Code § 16-5502(a)-(b). Although there has been some uncertainty as to whether D.C.'s anti-SLAPP act applies in federal court, the emerging trend has been to find that it does. On September 27, 2013, Judge Emmet G. Sullivan of the District of Columbia District Court found the statute applicable to a defamation lawsuit brought by Yasser Abbas and granted the defendant's special motion to dismiss made under its terms.

Yasser Abbas is a wealthy businessman and political emissary for his father's regime, the Palestinian Authority ("PA"). He sued Foreign Policy Group, LLC, and journalist Jonathan Schanzer for certain statements Schanzer made in an article he had written about the sons of the Palestinian president. The article was published in the "Argument" section of Foreign Policy Magazine and questioned whether the sons of the Palestinian president were "growing rich off their father's system" and whether they had "enriched themselves at the expense of regular Palestinians" and U.S. taxpayers.

When the defendants responded with a motion to dismiss under the anti-SLAPP act, the first question was whether D.C.'s statute even applied in federal court, a question not yet decided by D.C.'s highest court. The issue boils down to whether the anti-SLAPP statute should be viewed as substantive or procedural, as federal courts sitting in diversity apply federal procedural laws but state substantive laws. Judge Sullivan looked to other circuits and found that many interpret similar state statutes as substantive and do apply them in federal diversity cases. Notably, the D.C. Circuit has upheld a district court decision denying a special motion to dismiss under the anti-SLAPP statute because it was not timely filed. Although that decision did not specifically hold that the anti-SLAPP statute was substantive, it implied as much. With this background, Judge Sullivan was persuaded that the anti-SLAPP law applies in federal court.

To succeed on their special motion, the defendants were required to show that Mr. Abbas' claim arose from "an act in furtherance of the right of advocacy on issues of public interest." The court found that Mr. Abbas was a limited purpose public figure because he had voluntarily thrust himself into a role of prominence in Palestinian DCdistrictcourt.jpgpolitics and in the controversy surrounding his wealth. Further, the question of U.S. aid to the PA and the manner in which the PA used such aid are questions that have been debated at length for years. The court held that the "level of corruption in the PA," whether Mr. Abbas has enriched himself by virtue of his political ties, and whether his wealth can be traced to U.S. tax dollars are issues of public (not private) interest. Accordingly, the court held that the defendants had made a prima facie showing that the defamation claim arose from an act in furtherance of the right of advocacy on issues of the public interest. The burden then shifted to Mr. Abbas to show that he was likely to succeed on the merits.

Mr. Abbas contended that the questions invited his colleagues and the world to wonder if he has enriched himself at the expense of others. He argued that, while posed as questions, the statements could be read as assertions of fact, falsely accusing him of using wrongful and possibly criminal means to accumulate wealth. The defendants responded that the article merely raised unanswered questions, and that even if they could be interpreted as assertions, the statements were pure opinion and therefore non-actionable.

The court agreed with the defendants, finding that the questions posed in the article could not reasonably be interpreted as statements of fact. The court found that the questions merely invite the reader to form an independent opinion as to the relationship between the Abbas family and its wealth, which invitation is "the paradigm of a properly functioning press."

Even if the questions were capable of defamatory meaning, the court held that they were statements of opinion protected by the First Amendment. The factual basis for the article's questions was outlined with statements and hyperlinked source material. This put the reader on notice that the piece was one of opinion. Also, the article appeared in the Argument section of the Foreign Policy Group website--a place where readers expect to find opinion pieces.

The court held that Mr. Abbas failed to meet his burden of proving that he was likely to prevail on the merits. Accordingly, the court granted the defendants' special motion to dismiss.

Proving Malice in Defamation-By-Implication Cases

April 2, 2013,

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


meaning. Plaintiff must show that defendant acted with improper motive. In ordinary defamation cases, plaintiff can show intent to defame solely through knowledge that the statement was false. In defamation-by-implication cases where the statement can have a non-defamatory meaning, showing falsity alone is inadequate to establish intent to defame. In these cases, plaintiff must show something that establishes defendants' intent to communicate the defamatory meaning.

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.

Unauthorized Product Placement: Defamation by Implication?

March 24, 2013,

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.

Fabricated Quotations Actionable if Harmful to Reputation

March 1, 2013,

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 quotes.jpgthe 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.

Defamation By Implication Theory Prevents Dismissal of Art Analyst's Case

August 23, 2012,

In Virginia, defamation liability can be based on a statement that is literally true, if the true meaning of the statement arises from reasonable inferences attributable to it rather than the actual words used. Some jurisdictions refuse to recognize this "defamation by implication" or "implied defamation" theory, but on August 9, 2012, the Southern District of New York issued an opinion demonstrating that New York is among the states that recognize the doctrine.

Peter Paul Biro is in the business of art restoration and authentication and is well known in the art world for having developed scientific approaches to art authentication through fingerprint analysis. In July 2011, The New Yorker published an article titled "The Mark of a Masterpiece: The man who keeps finding famous fingerprints on uncelebrated works of art." (Note: a full copy of the article is attached to the opinion). Biro sued the magazine, investigative journalist David Grann, and others for defamation, claiming that various passages in the article damaged his reputation to the tune of two million dollars.

In Biro v. Condé Nast, the court adopted the Fourth Circuit's approach to defamatory implication claims, holding that a plaintiff must make an "especially rigorous showing" that (1) the language may be reasonably read to impart the false innuendo, and (2) the author intended or endorses the inference. Where an implication arises fingerprint.jpgdue to the omission rather than the expression of facts, the court will examine whether the omission would materially change the alleged implication.

On the other side of the coin, the court noted that if a statement is substantially true according to the understanding of the average reader, it will generally not be deemed defamatory. For example, the article stated that Biro "pioneered a radical approach to authenticating pictures." Biro claimed this statement was defamatory because he says there is nothing "radical" about fingerprints. Biro characterized the use of fingerprint analysis in art authentication as an "emerging field." The court found that the truth according to Biro would not have a different effect on the mind of the reader than the idea that fingerprint authentication is "radical." The court therefore dismissed those claims based on substantially true statements.

On the topic of fact vs. opinion, the court wrote that while expressions of opinion are generally not actionable as defamation, a statement of opinion that is based on undisclosed facts might be actionable because a reader may reasonably infer that the writer knows certain facts which support the opinion. For example, statements alleging that Biro had been caught in lies and was a "phony" suggest facts undisclosed to the reader, the court found. The court declined to dismiss claims based on these statements.

In the final analysis, just four of the original 24 counts survived the motion to dismiss.

Breach of Non-Disparagement Agreement Leads to Defamation Claim

June 29, 2012,

The United States District Court for the Western District of Virginia has found that negative comments a customer service representative made to a customer may form the basis of a defamation action.

Charles and Donna Bates operate a school photography business. They entered a contract with Strawbridge Studios, Inc., also a school photography business, under which Strawbridge purchased the Bates' accounts and employed them to handle certain accounts. The relationship deteriorated and ended in the Bates filing a breach of contract action again Strawbridge. The parties resolved their dispute and entered a settlement agreement which included a non-disparagement clause providing that neither party would "say, write, publish, broadcast, or in any other way participate in negative or disparaging comments about the other."

Later, when a customer called Strawbridge looking for a photograph she believed the Bates had taken, Strawbridge's customer service representative told the customer that the Bates were "not reputable" and "could not be trusted." The representative also stated that "things got so bad" that Strawbridge "had to get involved in a lawsuit." The Bates filed a second suit against Strawbridge and included a claim for defamation.

Strawbridge moved for summary judgment on the defamation claim, arguing that (1) the Bates failed to prove that the customer service representative made the alleged statements, (2) the Bates failed to produce evidence that the statements were false, (3) the statements were expressions of opinion, and (4) a qualified privilege protects the statements.

The court rejected all of Strawbridge's arguments, first finding that the Bates' customer declaration describing the customer services representative's negative comments was sufficient evidence to establish that the allegedly defamatory statements were made. The court then noted that the issue of whether a plaintiff has sufficiently proven the falsity of allegedly defamatory statements is a question to be decided by a jury. Strawbridge submittedstudio light.jpg third party declarations stating that the Bates were not trustworthy and did not have a good reputation, and the Bates proffered declarations from individuals that cast them in a positive light. Given this evidence, the court found that reasonable minds could differ on the issue of truth or falsity and therefore the issue must go to the jury.

Whether an allegedly defamatory statement is fact or opinion, however, is a question of law to be determined by the court. The court noted that in making such a judgment, it must consider the statement as a whole. The court found that the statements could be reasonably understood to imply the existence of defamatory facts given the context in which they were made and the fact that the customer service representative referred to the lawsuit between the parties. Therefore, the court was unable to conclude as a matter of law that the statements at issue were pure expressions of opinion.

Finally, the court rejected Strawbridge's qualified privilege argument. A communication made in good faith on a subject matter in which the person communicating has an interest or owes a duty is qualifiedly privileged if made to a person having a corresponding interest or duty. For the privilege to apply, Strawbridge must show that its representative and the customer had corresponding duties or interests in the subject matter. Here, Strawbridge failed to show that the customer had any interest in learning about Strawbridge's failed business relationship with the Bates. In fact, the customer stated in her declaration that she "had no interest in hearing these backbiting comments."

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.

"Girls Gone Wild" Defamation Suit Nets $3 Million

March 24, 2011,

Kids these days. The use of fake IDs by teens is nothing new, but when that ID contains the name of a real person, and the imposter goes on to do naughty things while posing as someone else, the law of defamation can come into play. And if you're inclined to post a YouTube video of that identity thief engaged in acts of questionable moral character, you'd better conduct some due diligence to ensure you don't destroy someone's reputation. That's a lesson that Joe Francis, the entrepreneur behind the risqué "Girls Gone Wild" videos, may have just learned as a result of a $3 million default judgment entered against him earlier this month in New Jersey federal court.

In a complicated scenario typical of the Internet age, in 2008 Francis wanted to take advantage of that year's scandal involving New York Gov. Eliot Spitzer and a prostitute named Ashley Alexandra Dupre. He offered Dupre $1 million to appear in a magazine spread and participate in a promotional tour for "Girls Gone Wild," but withdrew his offer when he found that he already had useful footage of Dupre from five years before, when she was 17 years old.

After Francis used the footage, Dupre sued him, claiming that she was underage and did not understand the release she had signed. However, Francis was able to come up Fake IDs.jpgwith a video of Dupre providing consent to appear in "Girls Gone Wild," stating that she was 18, and showing the driver's license of another woman who was of legal age. Dupre then dropped her suit against Francis.

But Francis's legal troubles weren't over. The other woman whose driver's license was held aloft by Dupre was Amber Arpaio, who was in no way involved in "Girls Gone Wild." Arpaio sued Francis, Dupre, and the companies that produce the DVDs for defamation, invasion of privacy, misappropriation of her name, and conspiracy.

The judge wrote that a person is liable for defamation if he makes a statement regarding a private person (as opposed to a public figure) with knowledge that the statement is false, reckless disregard of its truth or falsity, or negligence by failing to determine the truth or falsity of the statement. He noted that Arpaio had alleged that the defendants produced a video in which Dupre represents herself as Arpaio, and thus by implication states that Arpaio is affiliated with the "Girls Gone Wild" franchise, a false statement. Arpaio also alleged that the defendants knew the statement was false or acted in reckless disregard of whether it was true or false. The court therefore found it appropriate to enter a default judgment.

As for arriving at the $3 million figure, the judge referred to Arpaio's "distress from being mistaken as somehow affiliated with Dupre or 'Girls Gone Wild' " as well as her fear that she might lose job opportunities because a prospective employer would search for her name on the Internet and find her ID being brandished by Dupre. He also noted that if she were to have children, they too might suffer emotional damage from being exposed to the material. "Given the unique nature of the Internet," the plaintiff's Internet expert wrote, "this branding is for life."


Defamation Lawsuit Exposes Redskins Owner to Ridicule

February 4, 2011,

It doesn't take a defamation expert to see the flaws in the $2 million libel lawsuit filed this week by Redskins owner Dan Snyder against the Washington City Paper. Mr. Snyder took offense at an article titled, "The Cranky Redskins Fan's Guide to Dan Snyder: From A to Z (for Zorn), an Encyclopedia of the Owner's Many Failings," which contains a detailed list of reasons the author considered him a bad owner. Mr. Snyder also disapproved of an image of him, published with the article in question, on which someone had doodled devil horns and a mustache, which Mr. Snyder deemed "an anti-Semitic caricature of himself" which "forced" him to file the lawsuit. Talk about thin skin.

First of all, how ironic is it that Mr. Snyder claims he was forced to bring this lawsuit to protect his reputation and good name, and yet by virtue of suing the newspaper, he has stoked the interest of the media and triggered widespread public scrutiny into his prior activities, vastly increasing the number of people who will seek out and read The Cranky Redskins Fan's Guide to Dan Snyder? Personally, I'm not a regular reader of the Washington City Paper and would never have known about the alleged defamatory statements had Mr. Snyder not called my attention to them by suing the paper. Mr. Snyder and his lawyers have alerted the otherwise complacent populace to a long list of alleged bad acts by the Redskins owner. Even if he wins the case, will he really have done himself and his reputation any favors by suing an outspoken critic?

But he won't win. As I explained in an earlier blog post, not just any hurtful or offensive comment will constitute libel or slander upon which a plaintiff could DevilDoodle.jpgsuccessfully sue for millions of dollars. Defamation liability requires the publication of a false factual statement that concerns and harms the plaintiff or the plaintiff's reputation. Statements of opinion, regardless of how unfavorable the opinion, are not actionable. Thus, calling Mr. Snyder a failure, likening him to the devil, and referring to the "stain" he supposedly left on the Redskins are all constitutionally protected as free speech.

Snyder's lawyers are well aware of that restriction, and therefore focus their allegations on certain statements in the article that could be more easily interpreted as factual allegations. Namely, that "Dan Snyder...got caught forging names as a telemarketer with Snyder Communications;" that he caused Agent Orange to be used to destroy trees "protected by the National Park Service" on "federally protected lands;" that Mr. Snyder bragged that his wealth came from diabetes and cancer victims; and that Mr. Snyder was "tossed off' the Six Flags' board of directors. According to Huffington Post reporter Jason Linkins, these allegations are all demonstrably true or were intended as metaphors with substantial truth to them. If the statements are true, they are not defamatory.

Mr. Snyder has an even higher hurdle to climb if we wants to recover damages against the Washington City Paper: as a widely known public figure, Mr. Snyder will need to prove not only that the article contained false statements, but that the Washington City Paper acted with "constitutional malice": that it knew the statements were false or published the statements with reckless disregard of whether the statements were true or false.

If he fails to prove, with clear and convincing evidence, that the newspaper published false factual statements (not just opinions) about him, and that they did so with malice, he will lose the case. And while losing the case would not necessarily mean that the statements about Mr. Snyder's alleged activities are true, what will public perception be?