Articles Posted in Defamatory Meaning

If a statement claimed to be defamatory is substantially true (even if partially inaccurate), Virginia courts will generally not allow offended parties to bring defamation actions based on the minor inaccuracies. If the damaging aspect of the statement–the part that tends to affect one’s reputation–is substantially true, small factual errors that may exist in the less-important details are deemed insufficient to support a defamation action under the so-called “substantial truth doctrine.” In the Katie Couric defamation case I wrote about back in September, an interesting question arose: is a non-responsive or evasive answer to a question substantially the same thing as sitting in complete silence in response to that question? Judge Gibney thought so, and recently dismissed the case based in part on that reasoning. I would be surprised if that ruling gets upheld on appeal, though it may not ultimately make a difference to the outcome of the case.

Let’s recap briefly what the case is about. Katie Couric produced a documentary on gun violence called Under the Gun. Under the Gun portrays firearms as a serious social problem and advocates in favor of gun control. Ostensibly in an effort to show both sides of the gun-control debate, she invited members of the Virginia Citizens Defense League, a gun-rights organization, to be interviewed on camera. There is a scene in the film where she asks the VCDL group the following pointed question: “If there are no background checks for gun purchasers, how do you prevent felons or terrorists from purchasing a gun?” It’s a question often asked by gun-control advocates, and a question most gun-rights advocates are comfortable answering. But in Couric’s film, the responses shown on camera amount to what appears to be bewildered and uncomfortable silence. When the camera cuts away, viewers are left with the impression that the VCDL members had never considered the question before and were unable to come up with a single answer to it.

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As a small-business owner, can you sue for defamation personally if someone makes a false and damaging statement about your business? The answer will depend to a large degree on the size of your company and the extent to which the public views you and your company as one and the same. The determining factor is whether a false statement made only about your business (and not about you personally) nevertheless tends to degrade your personal reputation in the eyes and ears of those who hear the statement. If you own XYZ Company and XYZ has 1000 employees, a statement falsely accusing XYZ of producing a defective widget will not necessarily lower you as an individual in the eyes of the community. On the other hand, if XYZ Company is a single-member LLC with no employees or contractors on staff, the very same statement might be deemed to have the “sufficient nexus” that Virginia law requires to make the statement actionable by the business owner individually (as well as the business itself).

Under Virginia law, defamation requires (1) publication of (2) an actionable statement with (3) the requisite intent. What we’re talking about here is the second element of that test, which requires among other things that the statement at issue be “of and concerning” the person or entity bringing the lawsuit. To win a defamation case, you have to show that the statement at issue was intended to refer to you specifically and people who heard it understood it as such. A preliminary question for the judge is whether a reasonable person hearing or reading the statement could conclude that the defamatory statement was essentially “about” the plaintiff, even if the plaintiff is not mentioned by name in the statement.

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Hypersensitivity is not a desirable personality trait if you are a plaintiff in a defamation case. If you’re the type of person who tends to jump to conclusions about an author’s intent when reading certain statements made about you on social media, you should think twice (and consult with a defamation attorney) before rushing off to sue the writer for libel. This is because when a judge is faced with the task of deciding whether to allow a defamation claim to go forward, one of the preliminary rulings he or she must make is about how a reasonable reader would interpret the words claimed to be defamatory. If most people reading the article or social-media post would not draw the same defamatory conclusions that you are drawing when they read the statement, your case will likely be dismissed at the outset.

When a statement is clear, straightforward and unambiguous, interpretation usually won’t be an issue. But sometimes even the most well-intentioned writer can express thoughts in a manner that implies hidden meaning to at least some readers. Defamation liability can arise out of a statement that is literally true if a defamatory meaning can be reasonably inferred. Key to this principle, however, is that the inferred meaning must be reasonable; it cannot extend beyond the “ordinary and common acceptation of the words used.” A hypersensitive plaintiff who resorts to twisted logic or an overly-technical interpretation to reach a defamatory understanding from non-defamatory words will not be successful in court. Before allowing a case to go to a jury, the judge will examine the circumstances surrounding the making and publication of the statement and decide whether innuendo arising from the statement could cause a reasonable reader to infer a defamatory message.

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When suing for libel or slander in Virginia, it helps if you can make out a claim for that form of defamation known as defamation per se. If the judge agrees that your claim qualifies, he or she will instruct the jury to presume general damages and authorize it to award punitive damages even in the absence of compensatory damages. However, too often, plaintiffs place unneeded emphasis on trying to characterize their claim as defamation per se and overlook regular garden-variety defamation, known as defamation per quod. Defamation per quod can give rise to fairly substantial liability, as Rolling Stone found out when a former University of Virginia won $3 million based on a false portrayal of her in an article about rape on campus.

Defamatory words fall into the “per se” category if they: (1) impute to a person the commission of some criminal offense involving moral turpitude for which the party, if the charge is true, may be indicted and punished; (2) impute that a person is infected with some contagious disease, where if the charge is true, it would exclude the party from society; (3) impute to a person unfitness to perform the duties of an office or employment of profit, or want of integrity in the discharge of the duties of such an office or employment; or (4) prejudice the plaintiff in his or her profession or trade. (See Carwile v. Richmond Newspapers, 196 Va. 1, 7 (1954)).

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When I wrote about the elements of defamation back in 2013, I noted that one of the requirements for a successful defamation action is that the statement at issue be “defamatory in nature.” In other words, to be actionable, that statement must convey a defamatory meaning to the reader or listener; it cannot be merely insulting or provocative. What does it mean to be defamatory? The definition varies from state to state. In New York, a defamatory statement is one that exposes an individual “to public hatred, shame, obloquy, contumely, odium, contempt, ridicule, aversion, ostracism, degradation, or disgrace, or…induce[s] an evil opinion of one in the minds of right-thinking persons, and…deprives one of…confidence and friendly intercourse in society.” (See Celle v. Filipino Reporter Enterprises Inc., 209 F.3d 163, 177 (2d Cir. 2000)). Here in Virginia, defamatory words are those “tend[ing] so to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him.” (See Schaecher v. Bouffault, 290 Va. 83 (2015)). Words that rise to this level have been said to carry the requisite degree of “defamatory sting.”

Regardless of which state’s definition is applied, statements that tend to expose another to hatred, ridicule, or contempt are generally considered defamatory in nature. Disparaging statements about another’s moral values, personal integrity, or financial standing may fall into this category. Note, however, that although cases often recite that being made to look “ridiculous” in the community is sufficient to convey defamatory meaning, defamatory meaning is just one element of a defamation action. The tort of defamation also requires a false statement of fact. Therefore, not every statement that tends to expose another to public ridicule will be actionable in court.

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They say a picture is worth a thousand words. They also say the camera doesn’t lie. Remember, though, that photographs and videos can be altered in a variety of different ways, and when the alteration conveys a false and defamatory impression, the manipulated images can be actionable in a court of law.

In the case filed yesterday against Katie Couric, what essentially happened is this: Couric is the Executive Producer of a documentary on gun violence called Under the Gun. She invited members of the Virginia Citizens Defense League, a gun-rights organization, to be interviewed on camera. At one point in the film, she is shown asking the group this common question on the subject of background checks: “If there are no background checks for gun purchasers, how do you prevent felons or terrorists from purchasing a gun?” The various representatives of the VCDL sit in stunned silence and look away, as if they had never considered the question before. The camera then cuts away, leaving the viewer with the impression that none of the interviewees were able to come up with a single answer.

When U.S. News asked me last year to comment on Phi Kappa Psi’s plans for a defamation lawsuit against Rolling Stone, I responded that one of the first obstacles the fraternity would have to overcome would be to persuade the court that the article was “of and concerning” PKP as an institution and that it was not just about the individual perpetrators. The “of and concerning” test refers to the principle that a person suing for defamation needs to demonstrate that the defamatory words at issue referred to him or her (or it) specifically, either directly or by implication. That obstacle has now been overcome, as Judge Richard E. Moore of the Charlottesville Circuit Court has ruled that the article is reasonably capable of being interpreted as conveying defamatory allegations against Phi Kappa Psi. He overruled Rolling Stone’s demurrer and has allowed the case to proceed. It will ultimately be up to the fact-finder to determine whether the article is defamatory with respect to the fraternity.

Under Virginia law, a complaint for defamation must show on its face that the alleged defamatory statements are “of and concerning” the plaintiff. A plaintiff satisfies the “of or concerning” test if he shows that the statement was intended to refer to him specifically and would be so understood by persons reading it who knew him. Gazette, Inc. v. Harris, 229 Va. 1, 37 (1985). Whether a statement may reasonably be interpreted as “of and concerning” a plaintiff is a question of law to be decided by the court. If a statement cannot be so interpreted in the opinion of the judge, the case will be dismissed at the outset. But if the court finds a reasonable jury could conclude that the defamatory statement relates to the plaintiff, the court will allow the case to proceed to trial. That is what has happened in the Phi Kappa Psi case.

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To bring a successful defamation claim in Virginia state courts, it is necessary to allege facts sufficient to demonstrate to the judge that the statement claimed to be defamatory is capable of conveying a defamatory meaning to a reasonable audience. Before a defamation claim can be presented to a jury, the judge needs to make a preliminary determination that the statement at issue conveys factual information (rather than mere opinions) and that such factual information could be reasonably interpreted as having a defamatory meaning. What is a trial court supposed to do if the complaint contains only a short, out-of-context excerpt of the defendant’s statement?

In federal court, some judges have denied motions to dismiss such claims on the theory that the merits of the claim—while not apparent from the face of the complaint—are plausible and might be proven at trial. In state court, however, guidance from the Virginia Supreme Court suggests that libel and slander cases should be dismissed on demurrer if defamatory meaning is not readily apparent. In some situations, plaintiffs’ lawyers will craft the complaint in such a way as to make an out-of-context statement appear defamatory, when the surrounding statements omitted from the allegations would demonstrate that the statement as a whole could only be reasonably interpreted as hyperbole or opinion. When defense counsel is faced with such a situation, the smart move is to move for a bill of particulars.

Trial courts can order a bill of particulars “to amplify any pleading that does not provide notice of a claim or defense adequate to permit the adversary a fair opportunity to respond or prepare the case.” Va. Sup. Ct. Rule 3:7(a). When a plaintiff claims defamation, the preferred practice is to include the entire statement (verbatim) as well as all relevant surrounding details of the statement sufficient to demonstrate context. When such details are not included, “they are proper matters to be stated in a bill of particulars.” Fed. Land Bank of Baltimore v. Birchfield, 173 Va. 200, 217 (1939). The Virginia Supreme Court reiterated this principle as recently as 2006, when it expressly recognized that “the particulars of [an] allegedly defamatory statement may be supplied in a bill of particulars.” See Government Micro Res., Inc. v. Jackson, 271 Va. 29, 38 (2006).

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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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The idea of having your genitals and masculinity mocked by your doctor while laying unconscious on an operating room table is unappealing to say the least. But is it worth half a million dollars? As first reported by Washington Post reporter Tom Jackman, a Fairfax County man identified in court papers as “D.B.” inadvertently recorded his entire colonoscopy, and was later shocked to discover he had been ridiculed and insulted shortly after drifting off to sleep. He won a $500,000 verdict in his lawsuit against the anesthesiologist, Tiffany Ingham, and her practice, including $100,000 for defamation (you know, that tort that’s supposed to be about preventing and redressing attacks on one’s reputation). In my view, no defamation damages should have been awarded in this case, but it’s hard to imagine the case coming out any other way with the current limitations of the Virginia Model Jury Instructions.

Because D.B. recorded the procedure on his smartphone, the case presents a rare opportunity to listen to the actual words claimed to be defamatory as they were spoken. An excerpt of the recording is embedded below. One interesting question is whether the recording was properly admitted into evidence, as the recording would be considered illegal unless D.B. was a “party to the communication” (see Va. Code § 19.2-62(B)(2)), and D.B., though present and the subject of the discussion, was unconscious. But I digress. Listen to the recording and ask yourself: when Dr. Ingham remarks to her colleagues in the operating room that D.B. may have “tuberculosis in the penis” or syphilis, is she joking around, or asserting literally that D.B. actually had these conditions?
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