Defamatory Meaning Category Archives — The Virginia Defamation Law Blog Published by Reston Defamation Attorney — Virginia Slander & Libel Lawyer

May 9, 2023

Sanctions Mandatory if Defamatory Sting Obviously Lacking

When a party or an attorney files an objectively baseless defamation complaint, the trial court is required to impose sanctions on one or both of them, including but not limited to an award of attorneys’ fees. This is the main takeaway from Nestler v. Scarabelli decided a few days ago by the Virginia Court of Appeals. Litigation attorneys in both state and federal court are required to adhere not only to codes of ethics but also to procedural rules that prohibit using litigation for an improper purpose. Under Virginia Code § 8.01-271.1, any time a lawyer signs and files a complaint on behalf of a client, the lawyer is certifying that “to the best of his knowledge, information and belief, formed after reasonable inquiry, [the complaint] is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and…is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.” The court found that Dr. Scarabelli violated that rule by filing a defamation claim against Dr. Nestler that had no reasonable chance of success. Consequently, the trial court was not only permitted but required to impose an appropriate punishment.

MCV Associated Physicians (“MCVAP”) hired Dr. Tiziano M. Scarabelli as the Virginia Commonwealth University Health Systems’ Director of Cardio-Oncology on a one-year contract. After only a few months, MCVAP had received several complaints from staff members about Dr. Scarabelli’s alleged lack of professionalism. MCVAP also received complaints about Dr. Scarabelli from interns, residents, and patients, some of which appeared to constitute allegations of sexual harassment, such as claims that Dr. Scarabelli was “very touchy feely,” would put his hands on women’s thighs, and would often comment on the physical attractiveness of women. There were also claims he was just rude, “always putting down other physicians.” After a year, MCVAP decided not to renew Dr. Scarabelli’s contract.

April 7, 2023

The Big Issue in Dominion v. Fox Has Already Been Decided

by Lee E. Berlik

The jury trial in the libel and slander case of Dominion Voting Systems v. Fox News Network is now less than two weeks away. The consensus among defamation law experts seems to be that the “big issue” in this case is whether Fox acted with “actual malice,” a requirement established by the seminal First Amendment case of New York Times v. Sullivan back in 1964. Public figures can’t win defamation suits unless they can prove the defendant made a false statement about them with actual malice, generally defined as knowledge of falsity or, at a minimum, “reckless disregard” for the truth, which is the equivalent of a high degree of awareness that the statement at issue is probably false. In most cases, that’s a very difficult thing to prove, and many defamation cases fail due to an inability of the plaintiff to prove actual malice. Dominion’s case against Fox, however, is anything but ordinary. From my perspective, the only real chance Fox had of winning this case at the trial level was not to convince the jury that it failed to act with actual malice (an unlikely prospect) but rather to convince the jury that it was merely broadcasting newsworthy allegations made by others and that it was not necessarily endorsing those allegations. In a recent pretrial ruling, however, the court found that a reasonable jury could only conclude that Fox did, in fact, endorse the conspiracy theories and adopt the accusations against Dominion as its own. The jury won’t be allowed to even consider the issue. That means this case is essentially done. Dominion wins. The only question is how high the judgment amount will be.

Prior to the court’s recent ruling on Dominion’s motion for summary judgment, Fox had a glimmer of hope. After all, Dominion is the party with the burden of proof, not Fox. It is Dominion that needs to prove that the statements made about Dominion on Fox’s broadcasts were false and that Fox is responsible for making them, even if the statements were made only by guests on Fox programming. Even with all the media coverage about those behind-the-scenes text messages by Fox hosts in which they reveal their true feelings about the outlandish and unsupported accusations against Dominion being made by the likes of Sidney Powell and Mike Lindell, at least they could argue to the jury that when a member of the President’s legal team makes a public accusation that a manufacturer of voting machines was complicit in a giant scheme to flip votes and steal an election, that is a newsworthy event that Fox should cover, regardless of whether the accusation is true or false; the accusation itself is news. Sadly for Fox, that ship has sailed. The court has already entered partial summary judgment establishing not only that the statements about Dominion made by Fox guests were false, but that Fox is responsible for republishing those statements as if they were Fox’s own accusations against Dominion.

February 16, 2023

False Accusations of Violating HOA Covenants: Not Defamatory

by Lee E. Berlik

If you’ve been falsely accused of violating a law or breaking a rule, whether that false accusation can be deemed defamatory will depend on which rule you are alleged to have broken. Did someone say that they saw you jaywalk across a busy intersection? That may be false, but let’s be honest: who cares? Your reputation is not likely to suffer if some people harbor a false notion that you once crossed the street without using an available crosswalk. On the other hand, if that person falsely accuses you of stealing a car, that could actually cause the people who hear the accusation to think about you a little differently. They might not want to associate with you or transact business with you. A false accusation of committing a serious crime is said to carry “defamatory sting“–it hurts. A similarly false accusation about breaking a trivial rule may not carry such sting. When defamatory sting is lacking, the statement is not actionable as defamation.

The Virginia Court of Appeals published an opinion this week involving an HOA President, Theodore Theologis, who had filed a defamation claim against several of his neighbors in a Winchester townhome community. They had written a letter to the community criticizing his performance as President and supporting a petition seeking to remove him from the Board. One of the defendants had posted something to social media suggesting that the President had himself broken some of the HOA bylaws. He sued them all for defamation but the case was dismissed on various grounds raised by the defendants on separately filed demurrers. Theologis appealed to the Court of Appeals, which affirmed the dismissal of the case with prejudice.

September 1, 2022

Trying to Get Someone Fired Is Risky Business

by Lee E. Berlik

When relationships go bad, it’s not uncommon for one of the parties to seek to embarrass or harm the other by “exposing” the person for the horrible human being that he or she is. I see this most often in the form of revenge porn, social media bullying campaigns, and in efforts to contact the other person’s spouse or employer to disrupt those relationships and possibly get the other person fired. I’ve written earlier about how the First Amendment may protect informing another’s employer of harmful information if those allegations are completely true, but doing so carries risk. If the employer acts on the information and the employee suffers an adverse employment action, the whistleblower may face liability for defamation and tortious interference, particularly if the employee can convince the court that the statements or their implications are untrue.

Consider the case of Selamawit Teka* v. Jonathan Jack. In August 2021, Teka sued Jack in federal court, complaining that “Jack engaged in a course of unlawful and unauthorized contact with Teka’s employer, wherein he publicized and exposed personal details of Teka’s private life to those she works for without cause, reason or justification. In these communications, Jack publicized and exposed the contents of private social media conversations, and other details of Teka’s personal life, dealings, conversations and activity, to those with no legitimate interest or concern in her private affairs. Jack defamed Teka and violated her right to privacy with the intent to insult, humiliate and embarrass Teka, and get her fired.” The court was not impressed with the invasion-of-privacy claims, but it was persuaded that Teka had alleged a plausible cause of action for defamation and denied Jack’s motion to dismiss that claim.

September 20, 2021

Why Nona Gaprindashvili Is Suing Netflix for False Light

by Lee E. Berlik

A 1968 story in the New York Times reports that “Nona Gaprindashvili of the Soviet Union, the women’s world chess champion,” defeated seven men at an international chess tournament in Sweden, where she was the only woman in the field. In the 1983 book, The Queen’s Gambit, which tells the fictional story of an American girl who rises from humble beginnings to become a top chess player, the author mentions Ms. Gaprindashvili by name in the book’s final chapter set at a prestigious chess tournament in Moscow, noting that she had “met all these Russian Grandmasters many times before.” Netflix released a popular series based on the book which concludes as the book did with the climactic tournament. And just as in the book, Netflix invoked Gaprindashvili’s name for dramatic effect. But they changed one detail. “There’s Nona Gaprindashvili,” an announcer says, while the camera pans to an actress resembling her. “But she’s the female world champion and has never faced men.”

Gaprindashvili, now 80 years old and living in Tbilisi, Georgia, was appalled to learn that her professional accomplishments had been diminished by the series and filed a lawsuit in California last week for defamation and “false light.” To me, the case provides a good illustration of the limitations of defamation law and the reasons some states recognize a cause of action for “false light.” (I should note here that Virginia is not one of those states.)

March 7, 2021

Implied Undisclosed Facts as Basis for Defamation Claim

by Lee E. Berlik

As a general rule, statements of opinion are not actionable as defamation. It’s also true, however, that indirect implications from a statement can form the basis of a defamation claim. When a person prefaces a statement with “in my opinion” or “I firmly believe,” it has no effect on whether the statement carries defamatory implications or innuendo. If a speaker expresses an opinion under circumstances that would cause a reasonable listener to understand that the opinion is based on the speaker’s knowledge of undisclosed facts, that “opinion” can be treated as an implied assertion of fact. And if that factual assertion isn’t true and conveys a defamatory meaning about someone, defamation liability may arise.

This isn’t really an exception to the rule that you can’t sue someone for defamation based on an expression of opinion. Pure opinions remain protected by the First Amendment. The question is whether a reasonable listener or reader would infer from a particular statement (whether couched as an opinion or otherwise) 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. This is going to depend heavily on context, the identity of the parties, and the specific words used.

December 9, 2020

If the Lie Is Not Important, It’s Not Defamatory

by Lee E. Berlik

The law doesn’t require everyone to be completely honest in all facets of their day-to-day lives. Some lies can form the basis for a legal cause of action for defamation, fraud, business conspiracy, or other claims, but not all lies justify legal action. Some lies are more harmful than others. If someone has lied about you to other people and you are considering whether to sue for defamation, ask yourself this: has your reputation really been affected? If nobody cares about the factual error, or they respond to it with a “so what?” or a shoulder shrug, there’s a good chance the misrepresentation would not be considered defamatory by a Virginia judge.

To be considered legally actionable as libel or slander, a false statement must really sting. Meaningless insults are insufficient. Minor misrepresentations that can be easily shrugged off are insufficient. False statements about you that no one (but you) considers important are not going to cut it. What the court will be looking for are statements with defamatory meaning. Statements meeting this test are those that would tend to cause a person to be shunned from civilized society. They are statements that would tend to cause people to not want to have any personal or business dealings with the subject of the statement. People who have been legitimately defamed are those who have been exposed to public scorn and contempt as a result of false information circulating about them.

August 29, 2020

Virginia’s Fair-Report Privilege

by Lee E. Berlik

In Virginia, the right of the media to report freely and fairly on the operations of the government is sacrosanct. Reporters and news organizations that report on government activities are shielded from defamation claims by a “fair report privilege” that applies so long as the publication is a “fair and substantially correct statement of the transcript of the record.” (See Alexandria Gazette Corp. v. West, 198 Va. 154 (1956)). The privilege protects “press reports of official actions or proceedings, so long as the report was accurate and either complete or fairly abridged.” (See Chapin v. Knight-Ridder, Inc., 993 F.3d 1087, 1097 (4th Cir. 1993)). Everyone has a right of access to public records, and the fair report privilege makes it easier for the media to communicate the information contained therein to the public so that the government can be held accountable.

Some courts view the fair report privilege or “reporter’s privilege” as an exception to the republication rule. Normally, a person who repeats a defamatory statement is liable for republishing it, just as if he or she were the original speaker. Where a reporter repeats a defamatory statement made at a proceeding covered by the fair report privilege, however, no republication liability will attach provided the report is a fair characterization of what was originally said. If a media account of a government proceeding is fair and accurate, the publisher will be protected even if statements made at the proceeding and repeated in the publication were false and defamatory.

November 9, 2019

The Small-Group Exception to the “Of and Concerning” Test

by Lee E. Berlik

To be actionable in Virginia, defamatory statements must be about the person who is filing the lawsuit. A plaintiff can’t successfully bring a defamation action based on a false statement that doesn’t expressly or impliedly refer to him or her, and in a manner clear enough to communicate that reference to others. This is the “of and concerning” element that every action for libel or slander requires. When the false statement at issue concerns a group of people rather than an individual, a question arises as to whether the group’s members have been defamed. The general rule is that statements that broadly malign an organization as a whole do not necessarily defame the organization’s individual members. However, when the organization is small enough, the small-group theory postulates that a defamatory statement about the small group could be reasonably expected to harm the reputations of every individual member, whether or not they are identified in the statement, and that such statements should be treated as “of and concerning” each individual group member.

If a statement’s “language…is directed towards a comparatively small or restricted group of persons, then any member thereof may sue.” (See Ewell v. Boutwell, 138 Va. 402, 410 (1924)). How small does the group have to be to qualify for the small-group exception to the of-and-concerning requirement? That’s anyone’s guess. Courts around the country typically apply the doctrine to groups of up to around 25-50 members, but each case is going to be different. Courts will look to factors such as the size of the group, whether the statement attacks the group as a whole or some subset thereof, and whether the group is prominent in the community in which the statement was published. The key issue is whether a reasonable person hearing the defamatory statement about the group would likely interpret it as referring to all its individual members.

May 27, 2019

Even Vague Suggestion of Criminal Conduct May Be Defamatory Per Se

by Lee E. Berlik

Defamatory statements falling into certain categories deemed particularly damaging to one’s reputation are considered defamatory “per se” and may be compensable even without proof of reputational harm. False accusations of morally reprehensible criminal activity are a common example of this “per se” form of defamation. As the Virginia Supreme Court has put it, defamatory words will be considered defamation per se when they “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.” (Tronfeld v. Nationwide Mut. Ins. Co., 272 Va. 709, 713 (2006)). One thing that remains unclear, however, is the degree of specificity required before a statement will be deemed defamatory per se. Must the statement describe specific conduct, or is it sufficient to merely characterize unspecified conduct as criminal in nature? Must a specific criminal offense be identified? There doesn’t yet seem to be a consensus on these questions. The latest Virginia court to deal with them allowed a case to proceed on the basis of very vague allegations.

Here’s what happened in the case of Frances J. Belisle v. Laura Baxter, according to the opinion. Frances brought two counts of defamation per se against Baxter, a police officer with the City of Hopewell, arising out of her arrest at Hopewell High School for disorderly conduct. The police were at the high school at its request to provide security at a school event in which Frances’ minor daughters were participants. They set up a barricade of tables to form a controlled entry point to a hallway in the school. When Frances approached the tables with her 9-year-old daughter, seeking to escort her to a classroom, she was initially told that only the daughter could enter. The police eventually decided it was OK to allow the parent to come in, but when Frances later observed Officer Baxter stopping another mother from entering the hallway, she decided to intervene.