Articles Posted in Defamation by Implication

As a general proposition, libel and slander liability requires a defamatory statement of fact; expressions of opinion are not actionable. Distinguishing assertions of fact from expressions of opinion, however, is not always an easy task. Factual statements are generally those that contain—expressly or impliedly—a provably false factual connotation. “Mr. Smith drank ten shots of tequila last night” is a statement of fact; either he drank ten shots or he didn’t. Expressions of opinion, on the other hand, are relative in nature and depend largely upon the speaker’s personal viewpoint. They tend to consist of evaluative statements reflecting the speaker’s own political, moral, or aesthetic views. “I think Mr. Smith drinks more tequila than he really should” would likely be deemed an expression of opinion by most courts. But consider the statement “I think Mr. Smith must be an alcoholic.” Fact or opinion?

Statements that appear at first to be opinions but which could fairly be interpreted as implying the existence of facts not disclosed by the speaker are treated by Virginia courts as opinions “laden with factual content,” which is a sufficient predicate upon which to base a defamation action. (See Richmond Newspapers, Inc. v. Lipscomb, 234 Va. 277, 298 n.8 (1987)). Ultimately, whether a statement of apparent opinion will be deemed sufficiently laden with factual content to support a defamation action will depend on a number of factors that would influence how a reasonable reader or listener would most likely interpret the statement. Considerations include the following:

Redouane Goulmamine, M.D., is physician based in Petersburg, Virginia, who conducts business under the name “The Petersburg Spine Center.” According to a complaint he filed in the Richmond Division of the Eastern District of Virginia federal court, he became aware that several employees of CVS Pharmacy were providing false information about him to patients and refusing to fill prescriptions he had written. CVS eventually made it official, sending him a letter notifying him that the pharmacy would no longer fill his prescriptions and implying its decision was based on its belief that Dr. Goulmamine had been writing pain-pill prescriptions for drug addicts.

Dr. Goulmamine sued CVS for defamation, insulting words, and tortious interference with contract/business expectancy. The complaint recites nearly two-dozen conversations with CVS employees alleged to be defamatory. Some of the statements were clearly statements of opinion (e.g., “he is filling too many prescriptions”), but the court noted that several alleged statements amounted to statements of fact that were claimed to be false. These statements primarily fell into two camps: (1) false factual statements about Dr. Goulmamine himself (e.g., that he was in jail; that he had overprescribed to a pregnant patient; that one of his patients had died from a Xanax overdose; and that someone in his office was producing fraudulent prescriptions); and (2) false or misleading factual statements about Dr. Goulmamine’s standing in relationship to regulatory bodies (e.g., that the DEA, FBI, or Board of Medicine was investigating him or had revoked his license, or that he was being “audited.”)
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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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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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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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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.)

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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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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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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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.

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