Articles Posted in Defamation by Implication

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.

The District of Columbia’s anti-SLAPP act applies to actions that arise from an act in furtherance of the right of advocacy on issues of public interest. It provides that if a party makes a prima facie showing that the case involves the type of claim to which the act applies, the court will dismiss the case–with prejudice–unless the responding party can demonstrate that the claim is likely to succeed on the merits. D.C. Code § 16-5502(a)-(b). Although there has been some uncertainty as to whether D.C.’s anti-SLAPP act applies in federal court, the emerging trend has been to find that it does. On September 27, 2013, Judge Emmet G. Sullivan of the District of Columbia District Court found the statute applicable to a defamation lawsuit brought by Yasser Abbas and granted the defendant’s special motion to dismiss made under its terms.

Yasser Abbas is a wealthy businessman and political emissary for his father’s regime, the Palestinian Authority (“PA”). He sued Foreign Policy Group, LLC, and journalist Jonathan Schanzer for certain statements Schanzer made in an article he had written about the sons of the Palestinian president. The article was published in the “Argument” section of Foreign Policy Magazine and questioned whether the sons of the Palestinian president were “growing rich off their father’s system” and whether they had “enriched themselves at the expense of regular Palestinians” and U.S. taxpayers.

When the defendants responded with a motion to dismiss under the anti-SLAPP act, the first question was whether D.C.’s statute even applied in federal court, a question not yet decided by D.C.’s highest court. The issue boils down to whether the anti-SLAPP statute should be viewed as substantive or procedural, as federal courts sitting in diversity apply federal procedural laws but state substantive laws. Judge Sullivan looked to other circuits and found that many interpret similar state statutes as substantive and do apply them in federal diversity cases. Notably, the D.C. Circuit has upheld a district court decision denying a special motion to dismiss under the anti-SLAPP statute because it was not timely filed. Although that decision did not specifically hold that the anti-SLAPP statute was substantive, it implied as much. With this background, Judge Sullivan was persuaded that the anti-SLAPP law applies in federal court.

In ordinary defamation cases, proving malice is a straightforward affair because the statement at issue is only capable of being understood in a defamatory sense and the only question is whether the speaker knew the statement was false (or acted with reckless disregard to its falsity). Conversely, in defamation-by-implication cases, the allegedly defamatory statement has two possible meanings: one that is defamatory and one that is not. This complicates the malice inquiry because the speaker may or may not have intended to imply the defamatory meaning.

Recently, the Third Circuit had the opportunity to consider (1) whether the actual malice standard applies differently in defamation-by-implication cases such that more than knowledge of falsity or reckless disregard for truth is required and (2) if the standard is different, can a plaintiff can satisfy the actual malice standard by showing defendant’s mere awareness of a defamatory implication and reckless disregard of that implication or whether plaintiff must show actual intent to convey a defamatory meaning.

The Third Circuit agreed with several other circuits that plaintiffs in defamation-by-implication cases must show something beyond knowledge of, or recklessness in regard to, the FALSITY of the statement’s defamatory

Recmad, an apparently straitlaced company from Portugal, disapproves of the music video for “Danza Kuduro.” Why? Because the artists in the video are shown partying on Recmad’s yacht with a bunch of scantily clad women. In a lawsuit filed in Florida last month, Recmad claims it never agreed to allow the defendants to show the yacht in the music video, and that the video implies that Recmad advocates and engages in a “fast, lavish, over-the-top lifestyle.” Recmad seeks to recover damages for defamation by implication.

The suit, recently removed to federal court, is against UMG Recordings and other music industry businesses and professionals. According to the allegations of the complaint, defendants Don Omar and Lucenzo began filming the music video for “Danza Kuduro” in early 2010 on the Caribbean island of St. Martin. The video features Omar and Lucenzo living the high life with yachts, mansions, fast cars and “women in bikinis.” According to the complaint, Le Reve is “prominently featured in the video,” but apparently is shown only briefly, starting at the 2:15 mark. The video shows Omar and Lucenzo approaching some women on Le Reve, who then disembark to join Omar and Lucenzo on another yacht.

Recmad contends that the video became a worldwide hit, topping the music charts in numerous countries and that defendants have profited substantially through the sale and marketing of the song and video. According to Recmad, the defendants’ unauthorized use falsely implies that the owners of Le Reve engage in “wrongful and suspect conduct.” The crux of Remcad’s argument is that juxtaposition of its yacht with a lifestyle it does not condone resulted in defamation by implication. Recmad claims that it has “suffered damages” but does not specify those damages.

An essential requirement of any defamation action is that the alleged statement convey factual assertions. Pure expressions of opinion (i.e., those that neither state directly nor imply any assertion of objective fact) are protected by both the First Amendment and Section 12 of the Virginia Constitution. Whether a particular statement should be classified as fact or opinion is a threshold issue for the court to decide. Consequently, many libel and slander cases are dismissed at the outset and never reach a jury.

There’s not always a bright line between the two, and sometimes courts get it wrong. Yesterday, the Virginia Supreme Court reversed the decision of a Halifax County court to dismiss a defamation action on the ground the statement constituted opinion and not fact. The statement at issue was this: “Tharpe told me that Tharpe was going to screw the Authority like he did Fort Pickett.”

It’s certainly tempting to treat a statement like this as opinion, because whether or not someone got “screwed” is subject to differing viewpoints. But look closely. The speaker is not making the claim that Tharpe screwed the Authority or screwed Fort Pickett. What he is saying is that Tharpe TOLD him these things. Tharpe’s position in quotes.jpgthe trial court was that he never made such a statement. So the issue wasn’t whether or not getting “screwed” is a matter of fact or opinion, but whether it was a factual assertion to claim that Tharpe made this particular statement. The Virginia Supreme Court held that it was “indisputably capable of being proven true or false.”

In Virginia, defamation liability can be based on a statement that is literally true, if the true meaning of the statement arises from reasonable inferences attributable to it rather than the actual words used. Some jurisdictions refuse to recognize this “defamation by implication” or “implied defamation” theory, but on August 9, 2012, the Southern District of New York issued an opinion demonstrating that New York is among the states that recognize the doctrine.

Peter Paul Biro is in the business of art restoration and authentication and is well known in the art world for having developed scientific approaches to art authentication through fingerprint analysis. In July 2011, The New Yorker published an article titled “The Mark of a Masterpiece: The man who keeps finding famous fingerprints on uncelebrated works of art.” (Note: a full copy of the article is attached to the opinion). Biro sued the magazine, investigative journalist David Grann, and others for defamation, claiming that various passages in the article damaged his reputation to the tune of two million dollars.

In Biro v. Condé Nast, the court adopted the Fourth Circuit‘s approach to defamatory implication claims, holding that a plaintiff must make an “especially rigorous showing” that (1) the language may be reasonably read to impart the false innuendo, and (2) the author intended or endorses the inference. Where an implication arises fingerprint.jpgdue to the omission rather than the expression of facts, the court will examine whether the omission would materially change the alleged implication.

The United States District Court for the Western District of Virginia has found that negative comments a customer service representative made to a customer may form the basis of a defamation action.

Charles and Donna Bates operate a school photography business. They entered a contract with Strawbridge Studios, Inc., also a school photography business, under which Strawbridge purchased the Bates’ accounts and employed them to handle certain accounts. The relationship deteriorated and ended in the Bates filing a breach of contract action again Strawbridge. The parties resolved their dispute and entered a settlement agreement which included a non-disparagement clause providing that neither party would “say, write, publish, broadcast, or in any other way participate in negative or disparaging comments about the other.”

Later, when a customer called Strawbridge looking for a photograph she believed the Bates had taken, Strawbridge’s customer service representative told the customer that the Bates were “not reputable” and “could not be trusted.” The representative also stated that “things got so bad” that Strawbridge “had to get involved in a lawsuit.” The Bates filed a second suit against Strawbridge and included a claim for defamation.

Is truth an absolute defense to a defamation claim? Despite what you may have read elsewhere, the answer (here in Virginia) is no. Aside from the fact that falsity is an element of the claim that needs to be proven by the plaintiff (rather than an issue to be raised as a defense), “defamation by implication” is a developing area of the law in which liability can be based on a statement that is literally true. Not all implications and inferences will be actionable; the speaker must have intended to imply a defamatory meaning. (See Pendleton v. Newsome, 290 Va. 162, 174 (2015)). To prevail in a defamation-by-implication case in Virginia, a plaintiff must prove:

  1. that the defendant made the statements alleged in the complaint,
  2. that the statements, even if facially true, were designed and intended by the defendant to imply a defamatory meaning,

Kids these days. The use of fake IDs by teens is nothing new, but when that ID contains the name of a real person, and the imposter goes on to do naughty things while posing as someone else, the law of defamation can come into play. And if you’re inclined to post a YouTube video of that identity thief engaged in acts of questionable moral character, you’d better conduct some due diligence to ensure you don’t destroy someone’s reputation. That’s a lesson that Joe Francis, the entrepreneur behind the risqué “Girls Gone Wild” videos, may have just learned as a result of a $3 million default judgment entered against him earlier this month in New Jersey federal court.

In a complicated scenario typical of the Internet age, in 2008 Francis wanted to take advantage of that year’s scandal involving New York Gov. Eliot Spitzer and a prostitute named Ashley Alexandra Dupre. He offered Dupre $1 million to appear in a magazine spread and participate in a promotional tour for “Girls Gone Wild,” but withdrew his offer when he found that he already had useful footage of Dupre from five years before, when she was 17 years old.

After Francis used the footage, Dupre sued him, claiming that she was underage and did not understand the release she had signed. However, Francis was able to come up Fake IDs.jpgwith a video of Dupre providing consent to appear in “Girls Gone Wild,” stating that she was 18, and showing the driver’s license of another woman who was of legal age. Dupre then dropped her suit against Francis.

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