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.

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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.

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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.

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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.

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.

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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.

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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.

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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:

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When local politicians sue media defendants over false and defamatory stories related to their official conduct, they need to show that the article in question was published with actual malice. That means that it’s not enough to show negligent reporting or that some of the facts in the article are untrue; a successful public official bringing a defamation claim against a newspaper must show that the paper either knew the facts were wrong or that they were most likely wrong, and proceeded to publish them anyway.

In Hanover County, Virginia, Supervisor Sean M. Davis is taking a crack at the publisher of Style Weekly and its reporter, Peter Galuszka, over an article written last December that questioned whether Mr. Davis was exerting improper influence on a local high school’s curriculum. After noting that several books and movies had been banned from Hanover High School, the article described “some students, former teachers and parents” as saying that Supervisor Davis had “personally intervened to have teachers suspended or face other disciplinary actions if they present ideas or images that Davis considers too liberal.” In truth, claims his lawsuit, Davis “had absolutely nothing to do with the suspension or firing of any teacher or the banning of any book.” His challenge is going to be in proving that the reporter republished the accusations against him with knowledge that they were untrue, or at least with a high degree of awareness that the accusations were probably untrue.

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In Virginia, when a defamation action is brought by a private individual (as opposed to a public figure), the plaintiff will usually only need to establish negligence to meet the “intent” element required to prevail in such actions. Public figures, on the other hand, need to prove the defendant acted with New York Times malice. A little-known exception to the rule for private individuals, however, is that if the statement at issue does not make “substantial danger to reputation” apparent to the reasonable publisher, then even private plaintiffs would need to prove malice to recover for defamation. As explained by the Virginia Supreme Court in Gazette, Inc. v. Harris, 229 Va. 1, 22-23 (1985), a threshold question of law for the trial judge is to determine “whether a reasonable and prudent editor should have anticipated that the words used contained an imputation necessarily harmful to reputation.”

Do not confuse “substantial danger to reputation” with defamatory meaning. Regardless of the state of mind of the defendant, a statement won’t be actionable if it doesn’t carry the requisite defamatory sting. Every defamatory statement must contain the sort of false characterizations that would tend to harm one’s reputation. What plaintiffs need to prove in every defamation action is not just that a statement has the potential to cause substantial danger to reputation but that it actually is the sort of statement that would tend to harm reputation. What we’re talking about now–the “Gazette test”–deals with the foreseeability and obviousness of the harmful nature of the statement. In other words, while a successful plaintiff will always need to demonstrate defamatory meaning, if that defamatory meaning would not be readily apparent to a reasonable person in the position of the defendant at the time the statement was made, the plaintiff will need to prove malice, even if he or she is a private individual.

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