No Discovery Rule for Defamation Claims in Virginia

The statute of limitations for defamation actions in Virginia is one year. This means that if somebody libels you on the Internet, you have just one year from the date of the defamatory post in which to file a lawsuit. A question I get asked a lot is, “what if someone defamed my character several years ago but I just found out about it last week?” Here in Virginia, the answer (I’m sorry to say) is: it doesn’t matter. The statute of limitations begins to run when the injury occurs, not when you discover you’ve been injured, and courts have held that when someone defames your character, your reputation suffers even if you don’t know about it. Although it’s certainly true that you won’t become emotionally upset or embarrassed about false statements made about you behind your back, the fact remains that emotional distress is not a necessary element of a cause of action for defamation, and statues of limitation begin to run once the elements of the claim have been met. When a person’s reputation is unfairly attacked with false statements, the injury is immediate: people who know you and who read the statement and believe it will think less of you as a person, regardless of whether you know about it and regardless of whether you have suffered any emotional distress because of it.

Certain causes of action in Virginia–like fraud–are subject to a “discovery rule,” meaning that the cause of action will not accrue, and the statute of limitations will not begin to run, until the alleged misconduct is either discovered, or, by the exercise of due diligence, reasonably should have been discovered. Defamation claims, however, do not enjoy the benefit of the discovery rule, so the limitations period begins to run as soon as an actionable statement is published with the requisite intent. (See, e.g., Jordan v. Shands, 500 S.E.2d 215, 218 (Va. 1998) (holding that “when an injury is sustained in consequence of the wrongful or negligent act of another and the law affords a remedy, the statute of limitations immediately attaches.”)). Illustrating this point is the case of Robert L. Matthews v. Tracy M. Gee, decided March 9, 2017, by the Eastern District of Virginia.

In Matthews, the plaintiff worked as both a grounds technician and an assistant animal-control officer for Lunenburg County. While responding to reports of a dog attack in 2012, he was himself attacked by the dog, searching-1184656-300x277which resulted in an 11% permanent partial disability. Mr. Matthews was out of work for two years while recovering from his injuries. In his complaint, filed August 30, 2016, Mr. Matthews claimed that various county officials defamed his character in May 2012 (the month he was attacked by the dog) by making certain unfair and irrelevant statements in his personnel file.

The complaint, you’ll notice, was filed over four years after the alleged defamatory statements, well beyond the one-year statute of limitations. Mr. Matthews realized this, but argued that the “discovery rule” should apply to toll the statute of limitations. The court flatly rejected this argument.

“[A]…defamation claim does not toll during a period of time that the plaintiff was unaware of the actions–or illegality of those actions–giving rise to a claim,” the court wrote. The court observed that there are certain limited circumstances were Virginia courts will apply a discovery rule (e.g., fraud and medical malpractice), but noted that “[t]here is no discovery rule under Virginia law which would cure Plaintiff’s untimeliness.” The court held that the defamation claim was time-barred and dismissed it with prejudice.

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