The Depp v. Heard defamation trial in Virginia isn’t over yet, but everyone seems to have already picked a side. Whether you’re one of the 7.5 billion people viewing #justiceforjohnnydepp on TikTok or one of the 26 million checking out #justiceforamberheard, chances are that if you’re interested in the case, you have an opinion about which side should win. And if we’re talking odds here, you’re probably on Team Johnny. But how many of you actually know what this case is about? Contrary to what all the viral memes would have you believe, the case isn’t actually about which party was “the abuser” in the relationship. This case isn’t about men’s rights, #MeToo, or #BelieveWomen. It is a lawsuit involving competing claims of defamation that will require a jury of seven people to make very specific findings of fact on a limited number of issues. If the jury does its job and focuses solely on answering the questions the judge will soon instruct them to answer, there is a good chance that both Johnny and Amber will lose this case and return to their California homes empty-handed. From what I’ve seen of the evidence so far, neither side has a particularly strong case.
You’ve heard by now that companies like Facebook and Twitter are not liable for defamation when their platforms are used to circulate false and defamatory content. The law most often cited as the source of this protection is known as Section 230 of the Communications Decency Act. Section 230 provides protection to companies that supply the platform, forum, or other technology that others can use to communicate information, provided the companies are not involved in creating the content that gets posted on their sites. Section 230 generally allows such companies to moderate and delete content without losing immunity, but not create content themselves. Although Section 230 protects internet companies from liability as a publisher of speech, it does not protect them in situations where liability is sought on some other theory, such as intellectual property infringement or liability as the seller of a defective product.
In the case of Tyrone Henderson v. The Source for Public Data, the Eastern District of Virginia was faced with the question of whether Section 230 could apply to claims raised under the Fair Credit Reporting Act. The issue had apparently never come up before, but the court readily determined that Section 230 did apply because the defendants were being sued for publishing content created by others and were not involved in creating that content themselves. Section 230 is not limited to defamation claims and can be invoked in any case where its requirements are satisfied.
The statute of limitations for defamation claims in Virginia is just one year from the date of publication. “Publication” in this context refers to the communication of the defamatory statement to a third party. A person who repeats a defamatory statement originally made by someone else can sometimes be held liable for republishing the statement. That republication would constitute a new defamation claim and trigger a new one-year period under the statute of limitations. Republication liability, however, generally requires some evidence that the person repeating the defamation is vouching for the statement’s accuracy or adopting it as his/her own. Merely sharing someone else’s defamatory statement, without adding to it in some way or directing it to a new audience, will usually not give rise to defamation liability and will therefore not extend the statute of limitations beyond one year from the original publication.
In the Lokhova v. Halper case I wrote about last year, the plaintiff sued The New York Times and other publications roughly two years after they published articles about her that she believed were defamatory. She argued that her claim was not time-barred because several people had tweeted links to the articles in question within the 12-month period prior to her filing of the lawsuit. The court rejected her argument and dismissed the case, finding that merely sharing an article with others does not necessarily amount to republication. The article was already on the internet. Re-tweeting it, opined the court, is the equivalent of sharing a hard-copy book or magazine with another person. Doing so does not amount to a new publication that would trigger a new one-year period within which a defamation claim might be brought.
In a defamation case, like any other form of civil litigation, each side has a right of “discovery” to obtain information from each other and from third parties that may be relevant to the dispute. When the rules work as intended, there are no unexpected surpise witnesses or documents at trial–each side should be well aware of the information the other side intends to present at trial so they can plan accordingly. Federal Rule of Civil Procedure 26 allows parties to “obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case.” Fed. R. Civ. P. 26(b)(1). This rule allows parties to obtain just about any form of evidence provided it’s relevant and not protected by the attorney-client privilege, work-product doctrine, or other privilege. And for purposes of discovery, most courts apply a lower standard for relevance than they would apply at trial. Information may be discoverable even if only slightly relevant to the case, provided the burden of obtaining and producing the information is justified by the needs of the case. Generally speaking, the less money there is at stake in the litigation, the more relevant the information will have to be before a court will order a party to produce it in discovery. The rules dictate the courts consider “the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit” in assessing whether to compel a party to incur expense or burden in producing information not easily accessible. (See Fed. R. Civ. P. 26(b)(1)).
You can also obtain information from third parties who aren’t involved in the litigation if they are in possession of relevant information. This is accomplished through the issuance of subpoenas. (See Fed. R. Civ. P. 45(1)(A)(iii)). Courts typically won’t require third parties to incur substantial burden or expense unless the information is highly relevant and not obtainable from other sources, as third parties aren’t involved in the case and have no stake in the outcome. When a subpoena is directed to a third party, “courts must give the recipient’s nonparty status ‘special weight,’ leading to an even more ‘demanding and sensitive’ inquiry than the one governing discovery generally.” (See Va. Dep’t of Corrs. v. Jordan, 921 F.3d 180, 189 (4th Cir. 2019)). In particular, courts will consider (1) the extent to which the requesting party actually needs the information, measured by whether the information is likely to offer value over and above what the requesting party already has; (2) whether the requesting party can obtain the same or comparable information from other sources; and (3) the extent to which the request will impose a substantial burden on the recipient or others who might be affected (such as cost, overbreadth, privacy, and confidentiality interests).
A 1968 story in the New York Times reports that “Nona Gaprindashvili of the Soviet Union, the women’s world chess champion,” defeated seven men at an international chess tournament in Sweden, where she was the only woman in the field. In the 1983 book, The Queen’s Gambit, which tells the fictional story of an American girl who rises from humble beginnings to become a top chess player, the author mentions Ms. Gaprindashvili by name in the book’s final chapter set at a prestigious chess tournament in Moscow, noting that she had “met all these Russian Grandmasters many times before.” Netflix released a popular series based on the book which concludes as the book did with the climactic tournament. And just as in the book, Netflix invoked Gaprindashvili’s name for dramatic effect. But they changed one detail. “There’s Nona Gaprindashvili,” an announcer says, while the camera pans to an actress resembling her. “But she’s the female world champion and has never faced men.”
Gaprindashvili, now 80 years old and living in Tbilisi, Georgia, was appalled to learn that her professional accomplishments had been diminished by the series and filed a lawsuit in California last week for defamation and “false light.” To me, the case provides a good illustration of the limitations of defamation law and the reasons some states recognize a cause of action for “false light.” (I should note here that Virginia is not one of those states.)
A common concern among employees who quit their jobs or get fired is that their former employer will badmouth them to their colleagues or prospective employers, interfering with their ability to earn a livelihood. Although there are some benefits to getting fired versus quitting (e.g., unemployment benefits, severance packages), most people would prefer to have the record reflect a voluntary separation rather than an involuntary one, which usually implies poor performance on behalf of the employee. If you’re reading this, you’re probably wondering whether you would have a potential libel or slander claim against your former employer if that employer tells people that you were fired for bad behavior when the truth of the matter is that you either quit or were asked to leave through no fault of your own. The answer, as it so often is when dealing with legal problems, is maybe. It depends on why you left your former job, and what, exactly, your former employer communicated to others about the reasons for the separation.
The Virginia Supreme Court has recognized that misrepresenting the reasons for an employee’s termination may be sufficient grounds for a defamation lawsuit. In Government Micro Res., Inc. v. Jackson, 271 Va. 29 (2006), evidence showed that after a company fired its President and CEO, others were told that the CEO had “mismanaged the company” and “had been removed from his job because he lost $3 million.” The evidence also showed that these statements were untrue and that they were made with the intent to defame the former CEO and harm his ability to gain employment with a competitor. These facts were deemed sufficient to support a multi-million dollar defamation verdict. (Note: The holding wasn’t based on an accusation merely of “mismanagement,” which surely would have been deemed non-actionable opinion, but rather the coupling of that statement with an assertion that the CEO’s mismanagement resulted in substantial financial losses which were the basis for his termination. Those are factual statements, as they can be proven true or false).
When a person’s reputation is attacked, sometimes what stings the most is not so much what was actually said but what was implied. Virginia recognizes defamation by implication claims and permits plaintiffs to recover when (1) the defendant makes a statement designed and intended to imply certain false and defamatory facts, (2) in a context that would cause reasonable listeners or readers to infer the intended defamatory meaning, and (3) the plaintiff suffers harm as a result. (See Pendleton v. Newsome, 290 Va. 162, 175 (2015)). To be actionable, however, the inference urged by the plaintiff must be a reasonable one; if the judge has to squint her eyes and stretch her imagination to interpret the defendant’s statement the way the plaintiff is interpreting it, she will likely dismiss the case at the outset. That’s what happened earlier this year in a case brought against Ferrum College by its former athletic director.
Public officials have an uphill battle when seeking to sue media outlets for defamation. The public has a legitimate interest in the workings of government and reporters have the right and privilege to communicate information about the actions of public officials so that the government can be held accountable. Consequently, the law has evolved to make it difficult for public officials to sue media organizations for libel, even if a news story about them contains inaccuracies. Specifically, public officials can’t prevail in a defamation action based on their official conduct unless they can prove, with clear and convincing evidence, that the false story was published about them with actual malice, generally defined as knowledge of falsity (or, at a minimum, reckless disregard of the truth). Private individuals, by contrast, generally are not required to meet this standard. The high bar for public figures is designed to strike a balance between the private right against unfair attacks on one’s reputation and the First Amendment right of writers and publishers to share information on matters of public interest and concern. A recent decision of the Eastern District of Virginia shows how difficult it can be for public officials to meet their burden of proof.
The case of Joseph E. Preston v. City Council of the City of Petersburg involved a dispute between the City of Petersburg and its former City Attorney, Joseph Preston. The basic facts, according to the summary-judgment opinion, are as follows. Preston was the City Attorney from October 2016 to September 2018. On September 4, 2018, while Preston was on vacation, the City Council held a special meeting in his absence and passed two motions. One motion terminated Preston’s employment, effective immediately. The second motion stated that Preston would be allowed back into City Hall to retrieve his personal belongings “only by appointment and only if accompanied by a police officer.” The reasons for the firing and the restrictions on Preston’s ability to enter City Hall are not clear.
Under Virginia law, an absolute privilege protects speakers and writers from defamation claims when their statements are made in certain contexts. Absolute privilege will apply if the statement claimed to be defamatory was made in connection with (1) judicial proceedings (including preliminary proceedings sufficiently related to judicial proceedings); (2) proceedings before the Virginia Employment Commission; (3) proceedings of bodies creating legislation; or (4) military or navel communications among officers, provided the statement was relevant and pertinent to the matter under inquiry. If the absolute privilege does apply, the statement is completely immune, even if knowingly false and made maliciously. The maker of an absolutely privileged communication is accorded complete protection against defamation claims. (See Lindeman v. Lesnick, 268 Va. 532, 537 (2004)). This is far stronger protection than offered by qualified privilege, which provides only limited protection that can be defeated upon a showing of malice or other bad faith. Absolute privilege is an affirmative defense that can be raised in an answer or plea in bar. As with other affirmative defenses, absolute privilege should not be presented to the court by demurrer, as demurrers test only the facial validity of the allegations in a complaint. (See Givago Growth, LLC v. iTech AG, LLC (Va. 2021)).
By far the most common situation in which absolute privilege is invoked involves statements made in the course of a judicial proceeding. If someone lies about you in court, you can’t turn around and sue the person for slander. The adversarial judicial system is designed to allow fact finders to consider the evidence and determine the truth, and it’s a given that not every statement made by testifying witnesses in court will be truthful. There are also potential penalties for perjury for untrue statements made in court. For these and other reasons, Virginia courts have long held that statements made in connection with judicial proceedings are protected by an absolute “judicial privilege” against defamation liability when they are relevant and pertinent to the matter under inquiry. (See Darnell v. Davis, 190 Va. 701, 707 (1950)). The absolute judicial privilege protects not only witness statements made orally in court, but all statements in connection with the proceeding, including pleadings and statements made during depositions and discovery.
As a general rule, statements of opinion are not actionable as defamation. It’s also true, however, that indirect implications from a statement can form the basis of a defamation claim. When a person prefaces a statement with “in my opinion” or “I firmly believe,” it has no effect on whether the statement carries defamatory implications or innuendo. If a speaker expresses an opinion under circumstances that would cause a reasonable listener to understand that the opinion is based on the speaker’s knowledge of undisclosed facts, that “opinion” can be treated as an implied assertion of fact. And if that factual assertion isn’t true and conveys a defamatory meaning about someone, defamation liability may arise.
This isn’t really an exception to the rule that you can’t sue someone for defamation based on an expression of opinion. Pure opinions remain protected by the First Amendment. The question is whether a reasonable listener or reader would infer from a particular statement (whether couched as an opinion or otherwise) that the speaker or writer knows certain facts, unknown to the audience, which support the opinion and are detrimental to the reputation of the person about whom the statement is made. This is going to depend heavily on context, the identity of the parties, and the specific words used.