Articles Posted in Damages and Remedies

The right of privacy has been defined as the right to be left alone. After Supreme Court Justice Louis D. Brandeis co-authored an influential article in the Harvard Law Review in 1890, states across the country began to formally recognize and protect invasions of privacy rights. Invasion of privacy came to be categorized into four distinct types: (1) the unreasonable “intrusion upon seclusion” of another person, (2) publicity that unreasonably places another person in a “false light” before the public, (3) the unreasonable publication of another’s private life, and (4) misappropriation of another’s name or likeness.

If you’re reading this, there’s a good chance you’re a Virginia resident and believe someone has invaded your privacy. Before you get too excited about all the different causes of action you might have grounds to pursue, let me share with you the harsh reality that–with one narrow exception–Virginia recognizes none of these claims. Virginia does have a statute providing a remedy for a very limited and specific type of misappropriation of another’s likeness, as well as a law addressing computer invasion of privacy, but there is no cause of action in Virginia for “invasion of privacy” as there is in many other states.
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Libel and slander are considered “torts.” The law of torts is designed to provide a remedy that will “make the plaintiff whole” to the fullest extent possible. Usually, we’re talking about money: how much money would it take to fully compensate the plaintiff for the harm caused caused to the person’s reputation by the defamation? What is the value of the reputation and what amount would fairly compensate the plaintiff for his or her emotional anguish? Often, however, plaintiffs are less interested in money than in halting or removing the damaging statements (especially if they were published online and continue to reach readers), or forcing the defendant to make a public retraction. This latter form of relief–asking the court to order someone to refrain from making certain statements or to perform an affirmative act–is considered “equitable” in nature, basically meaning that it will be guided by vague principles of fairness. A court order granting this relief is called an injunction. It’s almost impossible to get.

One might think that if the purpose of tort law is to provide plaintiffs with a complete remedy for the harm, an injunction would be a logical choice because it has the capacity to prevent harm from happening in the first place. Moreover, many affected by online defamation take the position that no amount of money can truly restore a damaged reputation or bring an end to the emotional distress caused thereby. But that’s not how the legal system works. Virginia law (like the law in most states) has a strong preference for money damages over injunctive relief. If the court finds that an award of money will fully compensate the plaintiff, it will not issue an injunction as a general rule. This means that unfortunately, there is often a huge disconnect between what victims of online defamation want and what the court is willing to give them.
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Under the current statute, suits in Virginia for libel, slander, or “insulting words” can only be brought within one year from the time of publication. Earlier this month, delegate Dave Albo filed House Bill No. 1635, proposing that the Commonwealth increase the limitations period to two years, and providing further that in cases involving Internet defamation by anonymous tortfeasors, the statute of limitations be suspended (or “tolled”) upon a motion and showing of good cause. If the bill passes, it will make it a lot easier to identify and bring to justice those persons who use the Internet to conceal their identities while unleashing a barrage of false and harmful statements about another individual or business.

Statutes of limitation have been debated for hundreds of years. In a law review article written over 100 years ago, Oliver Wendell Holmes, Jr. asked, “what is the justification for depriving a man of his rights, a pure evil as far as it goes, in consequence of the lapse of time?” In other words, why have statutes of limitation at all? Shouldn’t every wrong have a remedy? There are some who feel that claims should be resolved on their merits regardless of when they are brought, whereas others argue that untimely claims should be forever extinguished. Most states have reached a consensus that defamation claims should be limited to one or two years, primarily due to concerns about First Amendment principles and a desire to avoid the chilling of free speech.
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Suppose you’ve spoken your mind about someone you don’t like and have been accused of defamation. Should you apologize? If you intentionally defamed the character of another person out of ill will or spite, you’re probably not going to want to apologize. But if you’ve either had a change of heart or a sudden realization that you’re about to get sued, there are some good reasons to say you’re sorry.

For one thing, apologizing–if done right–can mitigate the plaintiff’s damages. Plaintiffs who sue for libel or slander in Virginia aren’t just limited to recovery of out-of-pocket pecuniary losses; they can also recover damages for pure emotional distress. Even without proof of actual reputational harm, Virginia courts have allowed plaintiffs to recover compensation for mental anguish, embarrassment, and humiliation. In essence, the worse the plaintiff feels, the higher the potential for a large damages award. In the business world, studies of disgruntled customers have shown that they are more than twice as likely to forgive a company that performs poorly but then apologizes than one that offers payment in lieu of an apology. It stands to reason, then, that a plaintiff’s emotional distress will likely be diminished if you make a sincere, timely apology, and publish that apology to the same group to whom you made the defamatory remarks.
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As a business owner, you can’t control everything your employees will do or say. What if one of them defames the character of another employee while on the job? Can the business be held responsible? If the employee uttered the defamatory words while performing the employer’s business and acting within the scope of his or her employment, then yes, the employer can be held liable for defamation. How does one determine whether an employee’s statements were made with the “scope of employment”? In Virginia, an act will be considered within the scope of employment if it was (1) expressly or impliedly directed by the employer, or is naturally incident to the business, and (2) performed with the intent to further the employer’s interest, or from some impulse or emotion that was the natural consequence of an attempt to do the employer’s business, and did not arise wholly from some external, independent, and personal motive on the part of the employee to do the act upon his own account. (See Kensington Assocs. v. West, 234 Va. 430, 432 (1987)). If a plaintiff alleges the existence of an employment relationship, it becomes the employer’s burden to prove that the statement was not made within the scope of employment. Absent such proof, the employer is on the hook.

Last week, a defamation case against Bio-Medical Applications of Virginia, Inc. (doing business as Fresenius Medical Care Dominion) was allowed to go forward. The Amended Complaint filed in the case alleges that a Fresenius employee emailed to coworkers various false statements suggesting that the plaintiff (a registered nurse) had a complete disregard for patient welfare. For example, the alleged emails attributed to the plaintiff statements such as “[the patient] just needs a little bleach in his lines” and, in reference to another patient, “all she needs is a good shot of air. That’ll take care of her.” Another email accused the plaintiff of saying, “Well isn’t it about time?” after another patient had died. Fresenius Medical Care filed a motion to dismiss the case, arguing that the complaint failed to plead sufficient facts to hold the employer liable for the statements of its employees, and that the elements of defamation had not been satisfied. The court disagreed on both counts and denied the motion.
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According to The Virginian-Pilot, Portsmouth attorney Sterling H. Weaver was “convicted in Portsmouth General District Court of assault” in June 2006. A new lawsuit filed by that attorney alleges that a WAVY-TV report, broadcast in February 2014, reported similarly that “in 2006, a Chesapeake judge sentenced [Mr. Weaver] to 30 days in jail for grabbing a prosecutor by the throat after she asked to postpone a case.” (The quote is from the complaint, not the WAVY-TV report). Mr. Weaver says that he heard the report while in jail, where he was staying after being “indicted for assault on a law enforcement officer and sexual battery of that officer.” The report was defamatory, the lawsuit claims, because “the 2006 charge of assault was dismissed.”

Those of you who share with me an unnatural interest in Virginia defamation law are naturally curious as to what the issues in this case are going to be. There are several in my mind, but here are the first few that jump out:
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Before rushing to the courthouse to sue someone for libel or slander, there are a number of things one should consider. For one thing, even if no counterclaim is filed, filing a defamation action opens the door to all kinds of personal details about your life that you may prefer to keep private. To prevail, a plaintiff needs to prove that the defamatory statement was false. The defendant–the person who made the statement–doesn’t need to prove anything. Think about what that means as a practical matter. If someone Tweeted to a million followers that you are some kind of sexual deviant and that you had sex with a wildebeest (and assuming that the Tweet was understood and believed by readers as a literal statement and not as mere rhetorical hyperbole), and you decide to sue for defamation, you will need to prove that you did NOT actually have sex with a wildebeest. How does one prove such a thing? Well, generally by presenting evidence to the jury about what kind of sex life you DO have so that they can see that you are not the sort of person who would do such a thing. Or maybe you throw in some evidence about your documented fear of antelope. Either way, it could be embarrassing.

There’s also the libel-proof doctrine to consider. Because the tort of defamation is concerned primarily with damage caused to one’s reputation, some courts have held that when a plaintiff’s reputation is already so tarnished at the time a defamatory statement is published that it would be virtually impossible to make the reputation worse, the plaintiff will be deemed “libel proof” and the case will be dismissed prior to trial. If the defendant claims you are libel proof, think of what fun the discovery process will be for you, as the defendant goes about digging for evidence about how bad your reputation already is.
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Defamation law affords remedies to plaintiffs whose reputations have been tarnished by the false and damaging statements of others. But defamation plaintiffs face a particular dilemma: because legal proceedings are generally open to the public, filing a lawsuit over the libel or slander usually results in further publicity of the very statements the plaintiff wants to suppress. This has become known as the Streisand Effect, and is the same dilemma faced by plaintiffs seeking to enforce contracts containing non-disparagement provisions.

A vivid example is provided by the case of Dr. Steven A. Guttenberg v. Dr. Robert W. Emery, currently pending in District of Columbia federal court. Doctors Guttenberg and Emery were joint shareholders of an oral surgery practice for roughly 20 years, but their relationship soured and litigation ensured in 2008. The doctors settled that case with a settlement agreement containing a non-disparagement provision that restricted each of them from making statements concerning the other that might be harmful to reputation.
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Courts grant temporary injunctions sparingly and only after the moving party has alleged and proved facts entitling it to relief. Injunctive relief generally is not available to prohibit the making of defamatory statements as prior restraints on speech violate the First Amendment to the United States Constitution. Injunctions may sometimes be granted, however, where the defamatory words are made in the furtherance of the commission of another intentional tort. Care must be taken to ensure that any injunction is narrowly tailored to achieve the pin-pointed objective of the needs of the case, as prior restraints on speech are considered the most serious and least tolerable infringement on First Amendment rights.

In Chevaldina v. R.K./FL Management, Inc., a Florida appellate court found that the trial court had abused its discretion in granting an injunction against defamatory speech. Irina Chevaldina was an unhappy former tenant of R.K. Management which owned and managed commercial properties in South Florida. When R.K. discovered that Ms. Chevaldina was the author of anonymous, unflattering blog posts about it, it added several tort claims to its already pending action for defamation per se and libel against the previously anonymous blogger. The tort claims included counts for tortious interference with contractual and advantageous business relationships.
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The First Amendment protects anonymous speech, including online reviews of products and services written by people using fake names. The right to anonymous speech, however, is not absolute. Defamatory speech, whether or not anonymous, is not entitled to protection, as there is no constitutional value in false statements of fact. If someone pretending to be a former customer writes a defamatory review on Yelp, Amazon, or some other consumer-review site, but doesn’t disclose his or her real name, how does the business owner go about identifying the individual so that the individual can be held accountable? The answer lies in Section 8.01-407.1 of the Code of Virginia, which sets forth a specific procedure for uncovering the identities of people who communicate anonymously over the Internet.

The proper application of this statute was recently discussed in Yelp v. Hadeed Carpet Cleaning, a case arising out of Alexandria. As of October 2012, Yelp’s site contained seventy-five reviews about Hadeed Carpet Cleaning, many of them critical. Included among these reviews were assertions by anonymous authors claiming to have been charged for work never performed and claiming that “precious rugs were shrunk.” Hadeed sued the anonymous authors for defamation, alleging that the reviewers were never actual customers of Hadeed.

After filing the lawsuit, Hadeed promptly issued a subpoena duces tecum to Yelp, demanding the production of documents that would enable Hadeed to identify the authors of the allegedly defamatory reviews. Yelp objected, arguing that Hadeed had not complied with the requirements of Section 8.01-407.1. Hadeed revised its subpoena to comply with the statute, but Yelp continued to object and refused to comply. On a motion to compel compliance, the Circuit Court for the City of Alexandria held that Hadeed’s subpoena satisfied the requirements of both the statute and the First Amendment, and ordered Yelp to disclose the information. Yelp refused, and was held in contempt. It then appealed that ruling to the Virginia Court of Appeals (which has jurisdiction to consider appeals of civil contempt orders), arguing that the First Amendment requires a showing of merit on both the law and facts Rugs.jpgbefore a subpoena duces tecum to identify an anonymous speaker can be enforced. The Court of Appeals disagreed, holding in a case of first impression that Section 8.01-407.1 is not unconstitutional and that it alone provides the unmasking standard in Virginia.

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