Defamatory Meaning Category Archives — Page 6 of 7 — The Virginia Defamation Law Blog Published by Reston Defamation Attorney — Virginia Slander & Libel Lawyer

March 1, 2013

Fabricated Quotations Actionable if Harmful to Reputation

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 the 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.”

February 10, 2013

Defamation of Character: Libel and Slander Law in Virginia

by Lee E. Berlik

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.

December 21, 2012

Lawyer Claims Huffington Post Defamed Him By Attributing Controversial Article to Him

by Lee E. Berlik

Panamanian lawyer Juan Carlos Noriega has brought a defamation suit in the District of Columbia against the Huffington Post for falsely attributing to him an “offensive” article he claims he had nothing to do with. The article, entitled “The Primacy of the Rule of Law,” (which has since been removed from the site) concerned a “fake vaccination program” that the Central Intelligence Agency ran in order to gather information on Osama Bin Laden. The CIA relied on Dr. Shakeel Afridi to run the vaccination program, and when he was arrested, the United States government called for his release.

The article claimed that the United States’ outrage over Dr. Afridi’s arrest was inconsistent with every nation’s basic commitment to the rule of law, and that the United States’ demand that Afridi be released showed a disregard for Pakistan’s democracy and jurisprudence. The article suggested that Afridi had violated the Hippocratic Oath and that, because of the fake campaign, Pakistani parents had become skeptical of vaccinations and were refusing to immunize their children. The article asserted that thousands of innocent Pakistani children may be crippled for life with polio or die from hepatitis because of the vaccination scheme. A link to the article revealed a short biography and picture of Noriega and listed him as one of “HuffPost’s signature line up of contributors.”

Noriega claims he has never written anything for the Huffington Post. He says he’s never even submitted a comment on the site or created an account. According to the complaint, The Huffington Post did not contact Noriega before publishing the article, and when Noriega’s counsel informed the Huffington Post that he had been a victim of identity theft and asked it to remove the article, the Huffington Post did not respond. Noriega asserts that the Huffington Post maliciously and negligently published the article and attributed to him “highly offensive and defamatory beliefs” concerning terrorism, Pakistan, bin Laden, the U.S. government and the CIA that he does not hold.

October 8, 2012

Defamation Case Against Eliot Spitzer and Slate Dismissed

by Lee E. Berlik

Libel and slander claims depend to a large extent on whom the plaintiff targeted with the allegedly defamatory statement. Defamatory words may not support a cause of action unless they directly or inferentially refer to the plaintiff–this has come to be known as the “of and concerning” test. The defamation case filed against former Governor Eliot Spitzer and Slate Magazine Slate for a column Mr. Spitzer wrote in 2010 about an insurance bid-rigging scandal was recently dismissed by a New York court on the ground that the article did not sufficiently identify the plaintiff–a former insurance executive at Marsh & McLennan–as the subject of the statements.

William Gilman’s work for Marsh included negotiating “contingent commissions”–fees paid by insurers to insurance brokers who place insurance business with the insurer. As attorney general, Spitzer took the position that Marsh’s use of such commissions was illegal. A lawsuit ensued and Gilman was convicted of one count of restraint of trade and competition. While Gilman’s appeal was pending, the trial judge vacated his conviction because exculpatory evidence had not been disclosed during trial. Spitzer wrote an article published on Slate.com in response to a Wall Street Journal article criticizing his handling of the Marsh case. Gilman brought a claim for defamation against Spitzer and Slate based on statements in Spitzer’s article.

Gilman’s defamation claim was based on (1) a reference to “the many employees of Marsh who have been convicted and sentenced to jail terms” and (2) the statement that Marsh’s employees “pocketed … increased fees and kickbacks.” Defendants argued that neither of the challenged statements was “of and concerning” Gilman and therefore could not be defamatory.

September 3, 2012

Fraud Accusations Prompt Michael Mann’s Lawyers to Threaten Litigation

by Lee E. Berlik

Climate change scientist Dr. Michael Mann is threatening legal action against the National Review magazine for a blog post that appeared in “The Corner” section of its online publication. In the article, journalist Mark Steyn quoted writer Rand Simberg’s observation that Dr. Mann “could be said to be the Jerry Sandusky of climate science, except that instead of molesting children, he has molested and tortured data…” Mr. Steyn went on to call Mann “the man behind the fraudulent climate-change ‘hockey stick’ graph, the very ringmaster of the tree-ring circus.”

In a demand letter to the National Review, Dr. Mann’s attorney, John Williams, contends that Mr. Steyn’s statements amount to accusations of academic fraud and constitute defamation per se. He argues that the statements were false and were made with the knowledge that they were false. He cites several inquiries into his research which concluded that he has not engaged in academic fraud as proof that Mr. Steyn’s statements are false. Dr. Mann demands that the National Review retract the article and apologize or face legal action.

Dr. Mann may have a valid complaint, but he is going to have his work cut out for him. Dr. Mann is a well-known, much published and often quoted figure in the climate change debate. In fact, Dr. Mann has written a book on the climate change controversy. Courts have held that scientists who inject themselves into public controversies over scientific and political debates are public figures. As a public figure, Dr. Mann would have to prove by clear and convincing evidence that the National Review published a provably false statement with knowledge that it was false or with reckless disregard of whether it was false or not.

August 6, 2012

Target of Online Griping Files Defamation Action

by Lee E. Berlik

Fairfax-based Direct Connect, LLC, a credit card processing company, has sued Inkthis, LLC, and its owner, Debra Sachs, for alleged defamation and tortious interference with contract. Direct Connect is upset about certain statements posted on Inkthis’ Facebook wall, including one that referred to Direct Connect as “a bunch of thieves.” The defendants recently removed the case from Fairfax Circuit Court to federal court in Alexandria.

The Facebook posts describe the author’s frustration with certain business practices of Direct Connect, including what the author believed to be excessive charges debited from Inkthis’ bank accounts. Direct Connect says the statements are false, that the defendants knew the statements were false when they made them and, by publishing descriptions of the company that included words like “inept,” “horrible,” and “thieves,” the statements harmed Direct Connect’s reputation.

Statements that are relative in nature and depend largely upon the speaker’s viewpoint are generally considered expressions of opinion. Opinions cannot form the basis of a defamation action as they are protected by the First Amendment and generally cannot be interpreted as stating a provably false fact, a prerequisite for any defamation claim. Thus, referring to Direct Connect as “inept” and “horrible” will likely be deemed non-actionable opinion. Referring to the company as “a bunch of thieves” presents a closer question.

July 22, 2012

No Defamation Claim for Medical Resident’s Poor Performance Evaluation

by Lee E. Berlik

Employment reviews often lead to libel allegations due to the fact they often contain harmful statements perceived by the employee to be false and defamatory. In most cases, however, even if the performance review contains a false statement, no defamation claim will lie because (1) statements of opinion are not actionable under Virginia law (or the United States Constitution); and (2) communications between people on a subject in which they both have an “interest or duty” are deemed privileged.

The Fourth Circuit Court of Appeals recently considered–and rejected–the defamation claims of Claudine Nigro, a former medical resident at the Shenandoah Valley Family Residency Program. After a semiannual performance review in 2009, Nigro was notified that she would not be renewed for another year of residency with the program. Nigro appealed this decision, but then resigned a few months later. She brought an action against the residency program’s director and the hospital itself, claiming that she was defamed during the appeals process by the director of the program, who discussed her perceived shortcomings with the faculty appeals committee, and by employees of the hospital, who reported Nigro for allegedly recording her conversations with physicians.

Nigro alleged the Program Director defamed her with statements he made in various meetings and notices, including “There has been no evidence of improvement or intention to improve in weak areas,” “There is no change in apathetic/disinterested approach or demonstrated interest in learning despite 3-4 months of discussion and coaching,” and “There is faculty consensus that [Nigro] may be suffering from depression or poor career choice.” The court found that all the alleged statements were either opinion, factually true, not defamatory, or were protected by the qualified privilege applicable to statements made to another with a corresponding interest or duty.

April 7, 2012

Defamation Case Against Barbara Walters Dismissed

by Lee E. Berlik

A federal court in Massachusetts has dismissed a defamation case against Barbara Walters brought by a woman claiming to be the former lesbian lover of Walters’ daughter. In Walters autobiography, Audition: A Memoir, she refers to the woman, Nancy Shay, by first name only in a two-sentence statement. Walters wrote that “Nancy” was kicked out of high school for “bad behavior” after being “found in a nearby town high on God-knows-what” with Walters’ daughter. Shay did not deny being suspended from school but claimed the statements were defamatory because they falsely portrayed her as a user of illicit drugs. The court found the allegations were insufficient to state a claim for defamation and dismissed the case.

In Massachusetts, as in Virginia and every other state, there can be no defamation liability without “fault” on behalf of the defendant. For private plaintiffs (as opposed to public figures), this requires (at a minimum) an allegation that the defendant acted negligently with respect to determining the truth. Moreover, a statement is incapable of defamatory meaning unless it would tend to hold the plaintiff up to scorn, hatred, ridicule or contempt “in the minds of any considerable and respectable segment in the community.” In other words, a statement will not be considered defamatory if only a very small group of persons would view it as derogatory.

In her brief, Shay argued that Walters was at fault for making a false statement as to the reason for her suspension and that the statement damaged her reputation amongst the former faculty and students of the high school from which she was suspended. Alternatively, Shay suggested that, even if the statement that she was expelled for “bad behavior” was true, the allusion to drug use was made maliciously.

March 14, 2012

Libel Per Se? Libel Per Quod? Neither, Says Virginia Court

by Lee E. Berlik

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 offense.” 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.

June 10, 2011

Virginia Defamation Lawyer’s Arguments Rejected in Warren County

by Lee E. Berlik

When SolAVerde’s attorney spoke to the media about his client’s defamation claims against the Town of Front Royal and certain councilmen, he sounded pretty confident. The court, however, disagreed with his arguments and dismissed the Town from the lawsuit, finding it to be immune. The court also dismissed the defamation claims against the other defendants, but left the door open for SolAVerde, a Virginia solar energy company, to amend its claims against them.

The Complaint alleged that the defendants, in effect, accused the owners of SolAVerde of offering a bribe to public officials in connection with the bidding on a contract for a solar energy processing and production facility. According to plaintiff, a member of the Front Royal town council, whom they were unable to identify specifically, leaked a memorandum to the news media that raised the question of whether certain proposed monetary incentives were actually bribes. The plaintiffs sought $30 million in reputational damages.

However, in a May 26, 2011, opinion, Judge Paul Peatross Jr., sitting by designation in the Warren County court, dismissed the defamation claim. He found that the town was entitled to sovereign immunity because whatever the council members had done in connection with the bids and the possible contract, they were making a governmental decision. “The doctrine of sovereign immunity protects municipalities from tort liability arising out of the exercise of governmental functions,” he wrote. Judge Peatross concluded that the acts alleged by the plaintiffs, including the alleged leak of the document, “amount to a governmental function by the Town of Front Royal acting in its legislative capacity regarding the consideration of solar power for the Town of Front Royal,” and that the town is thus immune from defamation liability.