Recently in Defamation by Implication Category

Must Context Be Apparent from the Face of the Complaint?

July 18, 2015,

Last month, the Supreme Court of Virginia held in Pendleton v. Newsome that where defamatory meaning is not apparent from the face of a statement claimed to be defamatory, a plaintiff may introduce evidence to show that the statement was made in a context that would reasonably cause the statement to be interpreted in a defamatory sense. Allegations that the circumstances surrounding the making and publication of the statement were such as would convey a defamatory meaning, together with an explanation of meaning allegedly conveyed, "will suffice to survive demurrer if the court, in the exercise of its gatekeeping function, deems the alleged meaning to be defamatory."

This language certainly seems to suggest that a court might properly dismiss a defamation claim if the full context of the statement is not pled in the complaint. In Potter v. Associated Press, however, the Eastern District of Virginia denied a motion to dismiss and allowed a defamation claim to go forward after expressly recognizing that the complaint omitted the full context of the statement and that the context was necessary to determine whether the statement could reasonably be interpreted to have defamatory meaning.

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The Elements of Defamation in Virginia

June 6, 2015,

To successfully maintain an action for libel or slander, a plaintiff's complaint must allege facts that support each element of the tort. Failure to plead the required elements will lead to an early dismissal, and failure to prove the required elements at trial will result in losing the case. Trying to figure out exactly what those elements are, however, has never been easy in Virginia. Supposedly, the test for a valid defamation claim includes only three elements: (1) publication of (2) an actionable statement with (3) the requisite intent. The problem with applying this seemingly simply test is that element (2) is so complicated that it should really be broken down into several elements of its own. I attempted to do that with this blog post I wrote back in 2013, and I encouraged the Virginia Supreme Court to adopt a more useful seven-element test for defamation the last time I appeared before it, but my suggestion has not caught on with the justices. On June 4, 2015, the court decided Schaecher v. Bouffault, the new definitive case outlining the elements of defamation in Virginia.

Although the court still enumerates only three elements, we now have additional guidance on what it means to allege and prove an "actionable statement." The two big takeaways from the case are (1) Virginia now follows Fourth Circuit precedent on the definition and scope of defamatory "sting", and (2) it can be defamatory to call someone a "liar," but whether such a statement will be actionable will depend on the circumstances surrounding the statement and the context in which it was made, as those considerations will govern whether the statement would be interpreted as a statement of fact (actionable) or opinion (not actionable). The gravity of the lie itself will also be relevant to the determination, as the lie must cause reputation to be adversely affected to a sufficient magnitude before it will be deemed defamatory.

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Just Because You Told The Truth Doesn't Mean You Didn't Slander Someone

June 5, 2015,

Criminal defense attorney Larry L. Archie received a good bit of publicity recently over his slogan, "Just Because You Did It Doesn't Mean You're Guilty," as shown below on a North Carolina billboard. Yesterday, the Virginia Supreme Court issued a ruling that stands for a similarly counterintuitive proposition: despite the widespread notion that "truth is a complete defense" to defamation claims, you can't always escape liability for slander even if everything you said was literally true. Even where the words, when read out of context, are literally true and defamatory meaning is not immediately apparent, Virginia law permits a plaintiff to maintain an action for defamation where innuendo would lead a reasonable reader to infer a defamatory meaning.

The case of Pendleton v. Newsome involves the heartbreaking story of a seven-year-old child with a severe peanut allergy who ingested a peanut at school and died. According to the allegations in the complaint, the child's mother, Laura Mary-Beth Pendleton (the plaintiff) had informed the school staff earlier in the school year about her daughter's severe allergy to peanuts, that she provided the school with specific instructions, signed by the child's pediatrician, about how to treat her daughter in the event of an emergency, and that she brought in an "EpiPen Jr." for the school to keep on hand to inject Epinephrine if needed. She alleges she was told by the school's clinic assistant that they already had all the equipment they needed and didn't need the EpiPen.

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Statements Truthful When Made Won't Become Defamatory Later

February 2, 2015,

The Internet is full of factual assertions that were true at the time they were first published, but no longer are. Can future events modify the factual and legal landscape in such a way as to create defamation liability where there initially was none?

Earlier I wrote about the case of Lorraine Martin v. Hearst Corporation. Lorraine Martin brought a defamation action against several news outlets which had published accounts of her arrest for drug-related charges. It's not that she wasn't arrested; her complaint was that the charges were dropped in 2012 and that the publications refused to remove the original articles, which were still available online and causing harm to her reputation. The statements had become false over time, she argued, because Connecticut has an "erasure statute" which provides that after a certain amount of time after the dismissal of a criminal charge, the charge is deemed "erased" and the person's arrest record is wiped clean. The District of Connecticut rejected this argument, finding nothing in the statute to suggest that the legislature had intended to impose any requirements on anyone outside of courts or law enforcement. On January 28, 2015, the Second Circuit affirmed the dismissal of her claims.

On August 26, 2010, the Connecticut Post, Stamford Advocate, and Greenwich Time, all published articles online stating that Martin had been arrested and charged with numerous drug violations after police received information handcuffs.jpgthat a pair of brothers was selling marijuana in town. News 12 Interactive, LLC, published an Internet article reporting that Martin was arrested "after police say they confiscated 12 grams of marijuana, scales and traces of cocaine from [her] house." Martin conceded that these statements were all true at the time they were originally published. (Note: even before reading the court's analysis, it should be apparent to most of you that when a plaintiff admits her defamation action is based on a true statement, there are going to be problems.)

The Second Circuit held that the erasure statute "creates legal does not and cannot undo historical facts or convert once-true facts into falsehoods." The news accounts were truthful when made and remain truthful to this day: Ms. Martin was arrested. That a statute deems her not to have been arrested does not change history and make an accurate statement suddenly become defamatory. Rather, the effect of the statute is to prohibit courts from relying on a defendant's prior arrest record for such purposes as increasing a sentence for a later offense. In other words, the legislative intent was to treat as erased certain arrests in the context of the judicial and law enforcement systems, not to literally change history.

Martin realized there was a chance the court would find that the erasure statute was incapable of erasing historical truth, so she came with a backup theory: defamation by implication. Even if the articles were technically true, she argued, they only told part of the story and therefore gave readers an incomplete and inaccurate impression. The trouble with this argument, the court held, is that no reasonable reader could draw any untrue inference from the articles. While recognizing that a technically true statement can sometimes be so constructed as to carry a false and defamatory meaning by implication or innuendo, this was not such a case because the news reports at issue did not imply any fact about Martin that was not true.

Is it Slander to Call Someone a Liar?

December 13, 2014,

California lawyer Tamara Green has accused Bill Cosby of sexual assault. Bill Cosby, speaking through his publicist, characterized the accusation as "discredited" and as amounting to "nothing." First question: is Cosby calling Green a liar? Second question: is it defamatory to call someone a liar if they're actually telling the truth? Third question: is a celebrity personally liable for defamatory statements made by that person's attorney or publicist? Ms. Green believes the answers to all three questions are YES, judging by the fact that she sued Mr. Cosby for defamation a few days ago in Massachusetts federal court. Personally, I'm not so sure.

Let's begin at the beginning: what did Cosby actually say? In defamation actions, it is important to know the exact words used, lest liability be based on embellishments or mischaracterizations of those words by the plaintiff's attorney. First of all, it wasn't Cosby himself who responded to Ms. Green's allegations. Her lawsuit is based on statements made by his attorney and publicist. Back in 2005, when Ms. Green first went public with her accusations in an appearance on the Today Show (video below), Mr. Cosby's lawyer at the time, Walter M. Phillips, Jr., allegedly issued a statement calling the accusations "absolutely false" and saying that the alleged assault "did not happen in any way, shape, or form."

Years later, in a Newsweek interview published in February 2014, Cosby's publicist (claimed to be David Brokaw) gave Newsweek this statement: "This is a 10-year-old, discredited accusation that proved to be nothing at the time, and is still nothing." As if to demonstrate the reason we have a requirement here in Virginia to plead the actual words used, Ms. Green does not include this quotation in her complaint. Instead, she characterizes the statement as follows: "in an effort to continue the public branding of Plaintiff as a liar, Defendant Cosby through Brokaw 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."

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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."

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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.

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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.