Articles Posted in Defamation Per Quod

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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Under Virginia law, the necessary elements of the tort of defamation (which includes both libel and slander) are usually expressed as (1) a publication about the plaintiff, (2) of an actionable statement, (3) with the requisite intent. This sounds simple enough, but proper application of these principles is far more complicated than one would expect. This is, in part, due to the fact that the test is circular, as it begs the question of what an “actionable statement” is. It is more useful to think of Virginia law of defamation as encompassing the following eight elements: (1) a factual assertion (as opposed to an expression of opinion); (2) that is false; (3) and defamatory in nature; (4) that is about the plaintiff; (5) and made to a third party; (6) in a setting or context that isn’t privileged; (7) with the requisite degree of fault; (8) that causes actual or presumed damages (generally consisting of financial loss, loss of standing in the community, and/or emotional distress).

Element (6) refers to a defense, not an element of the plaintiff’s proof, but I’ve included it in the list to clarify that an otherwise defamatory statement made in a privileged setting will not be actionable in a court of law. Furthermore, element (8)–damages–is presumed (and need not be proven) in those situations deemed to constitute “defamation per se.”

Libel and slander will be considered “per se” defamatory if it (1) imputes the commission of a crime involving moral turpitude; (2) imputes that the person is infected with a contagious disease which would exclude the party from society; (3) imputes an unfitness to perform the duties of a job or a lack of integrity in the performance of those duties; or (4) prejudices the party in his or her profession or trade. Statements that might qualify as defamation per se include an allegation that one has acted unprofessionally, an attack on a person’s honesty and veracity, a false report of a corporations’ profit and earnings, a statement regarding a company’s inability to pay bills, and a statement suggesting a person is an incompetent businessman.

To make things more confusing, some courts use “per se” and “per quod” to distinguish between words that are defamatory on their face and words which do not appear to be defamatory, but are defamatory by implication, or that become defamatory when additional facts are made known. (When used in this sense, defamation per se refers not to the list of the four most serious categories described above, but to words defamatory on their face). Whichever definition of “per se” is used, “per quod” is the catch-all phrase that basically means “not per se.”

Hundreds of Virginia state and federal cases have struggled to apply the law of defamation in a manner consistent with the United States Constitution, as defamation cases necessarily involve a careful balancing of vital constitutional and common law rights. On the one hand, there is the First Amendment’s fundamental protection of free speech. On the other hand, there is a common law obligation not to abuse the First Amendment with unjustified attacks against the reputation and dignity of others. Defamation law attempts to accommodate these seemingly antithetical interests by providing a legal remedy for persons subjected to false and defamatory statements while limiting the range of statements considered defamatory and actionable.

Not every unflattering or critical remark will constitute actionable defamation. Statements that are merely unflattering, annoying, irksome, or embarrassing, or that hurt the plaintiff’s feelings, without more, are not actionable. To be defamatory, a statement must be more than merely critical; it must “make the plaintiff appear odious, infamous, or ridiculous.” A defamatory statement is one that causes reputational harm to a plaintiff, holding the plaintiff up to scorn, ridicule, hatred, or contempt–in other words, the type of statement that would tend to deter third parties from dealing with the plaintiff. To assert a claim of defamation, a plaintiff must show that a defendant published such a statement, that it was both factual in nature and false, and that it concerns and harms the plaintiff or the plaintiff’s reputation. A plaintiff in a Virginia defamation action must plead the statement with particularity, identifying the exact words claimed to be defamatory. Failure to allege the specific words claimed to be defamatory can lead to a dismissal of the case.

Expressions of opinion are also not actionable as defamation. Statements of opinion, as opposed to assertions of fact, are deemed privileged and no matter how offensive, cannot be the subject of an action for libel or slander. This is because a statement of opinion is not an assertion of fact that can be proven false, and falsity is a required element of a defamation claim. Statements of opinion are also protected by the First Amendment’s guarantee of freedom of speech. Distinguishing fact from opinion is not always easy. Courts need to examine whether the specific language has a precise meaning, whether the statements are capable of being proven true or false, and whether the context in which the communication was made affects the meaning of the statement.

Statements expressed in factual language but which would not be reasonably understood as an assertion of fact are not actionable. Rhetorical hyperbole, for example, is generally not interpreted literally, and therefore cannot support a defamation action. For example, defamation cases have been dismissed in Virginia where a talk show host said a government contractor had employees in Iraq who were “all over the country, killing people,” and where a newspaper article referred to a university official as the “Director of Butt Licking.” These statements were not literally true, but could not reasonably be understood as conveying actual facts. Other examples include parody, gross exaggeration, sarcasm, and irony.

Conversely, statements expressed in language suggesting mere opinion may nevertheless be treated as implied statements of fact if the statement suggests the speaker’s opinion is based on the speaker’s knowledge of undisclosed facts. Such statements may be actionable not because they convey “false opinions,” but rather because a reasonable listener or reader would infer 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. In other words, a statement of opinion that is based on undisclosed facts is potentially actionable because it carries with it an implicit statement of those facts.

Statements that are only partially false may not be sufficient to support a claim of libel or slander. If an allegedly defamatory statement is substantially true, it will usually be enough to defeat a defamation action. Substantial truth turns on the understanding of the reasonable listener or reader. In general, a statement is substantially true if the statement would not have a different effect on the mind of the reader from that which the complete truth would have produced. In other words, it is not necessary to demonstrate complete accuracy to defeat a charge of defamation. It is only necessary that the gist or substance of the challenged statements be true.

Celebrities, politicians, and other public figures have a higher burden in defamation actions. The First Amendment requires that in defamation actions brought by public figures, the plaintiff must prove that the allegedly defamatory statement was made with “actual malice,” meaning that it was made “with knowledge that it was false or with reckless disregard of whether it was false or not.” Hatfill v. The New York Times Co., 532 F.3d 312, 317 (4th Cir. 2008). Where a statement on a matter of public concern expresses or reasonably implies false and defamatory facts regarding public figures or officials, those individuals must show that such statements were made with knowledge of their false implications or with reckless disregard of their truth.

Virginia defamation law is vast and complex. For more information, or to discuss the application of the law to a particular set of facts, consult a defamation attorney.

Professional Timothy B. Hanks is a professional tax preparer who took offense at a television segment aired by WAVY Channel 10 in the Hampton Roads area that promised to inform viewers “how to avoid unscrupulous tax preparers,” then proceeded to tell a story involving an admitted mistake made by his company, Reliable Tax & Financial Services. Hanks sued the station for libel, libel per se, and libel per quod, seeking five million dollars in damages. Judge Doumar (Norfolk) rejected all three theories and, last month, dismissed the entire case with prejudice.

Libel per se and libel per quod are variations of a defamation cause of action. Under Virginia law, a claim for libel per se may exist for certain categories of defamatory statements deemed serious enough to warrant presumed damages. This includes statements such as those accusing a plaintiff of committing a crime involving “moral turpitude,” of being infected with a contagious disease, or, more commonly, of being unfit to perform the duties of his profession. Libel per quod, on the other hand, refers to statements the defamatory nature of which is not readily apparent, but which are understood by the recipient to be of a defamatory nature in light of extrinsic facts known by that person.

Hanks claimed the “unscrupulous” remark constituted defamation per se in that it imputed to him “an unfitness to perform the duties of office or employment for profit, a lack of integrity in the discharge of duties of such office, and the commission of a criminal Taxes.jpgoffense.” The court disagreed for several reasons, holding that the statements (1) are not “of or concerning” Hanks, (2) are not capable of defamatory construction, and (3) are constitutionally-protected opinion. The court also found that Hanks failed to sufficiently plead actual malice or special damages.

First, the court pointed out that Hanks failed to explain why he was suing personally, rather than Reliable Tax, the company mentioned in the broadcast. Rather than dismiss the case for lack of standing, however, the court took judicial notice of the fact that Hanks was the president of Reliable Tax and proceeded to address the merits.

The court found that Hanks failed to show that the statement about “unscrupulous tax preparers” as a class was directed at him. Hanks never pleaded any facts to show how he was personally affected by this story or that it would be plausible for viewers to know that the story was about Hanks merely from the reference to tax preparers as a class.

The court also ruled that the term “unscrupulous” was not of a defamatory nature in that it was broad, unfocused, and constituted wholly subjective opinion. It did not, as Hanks argued, imply criminal behavior.

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