A false and disparaging statement will not be grounds for a defamation claim unless the words are capable of sustaining a defamatory meaning. Not every insult will be actionable. What is “defamatory meaning”? Well, you should really consult a lawyer on that one as there is no easy answer. Virginia courts have tried to define it as words calculated to render the plaintiff “infamous, odious, or ridiculous.” (See Moss v. Harwood, 46 S.E. 385, 387 (Va. 1904)). Does that help? Not much. In New York, they look to whether the words “tend to expose one to public hatred, shame, obloquy, contumely, odium, contempt, ridicule, aversion, ostracism, degradation, or disgrace, or to induce an evil opinion of one in the minds of right-thinking persons, and to deprive one of their confidence and friendly intercourse in society.” (See Kimmerle v. New York Evening Journal, 186 N.E. 217, 218 (N.Y. 1933)). That seems specific enough, but try applying that test in the real world. How is a court to determine whether one statement tends to expose one to public ridicule but not another?
The Western District of Virginia had a chance to grapple with this question a little bit in AvePoint, Inc. v. Power Tools, Inc. In that case, the court was asked to consider whether a statement falsely describing AvePoint as a Chinese company was defamatory in meaning. Ultimately, the court found that the plaintiff’s allegations were sufficient to survive a motion to dismiss.
AvePoint and its subsidiary are American corporations and providers of infrastructure management and governance software platforms for Microsoft SharePoint products and technologies. AvePoint’s competitor, Axceler, offers similar software for Microsoft SharePoint products. AvePoint sued Axceler and its Regional Vice President of Sales for Western North America, Michael Burns, alleging that they made false and defamatory comments about AvePoint and its products and services on Twitter and in email communications with customers and potential customers. AvePoint alleged that Axceler and Burns made false statements describing AvePoint as a “Chinese company” whose products are “maintained in India,” and claiming falsely that Microsoft recommends Axceler’s software over AvePoint’s, that AvePoint’s customers were abandoning their contracts early in order to buy Axceler’s software, and that Axceler uses maintenance revenue in a way superior to AvePoint.