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

November 29, 2017

Press Release Held Defamatory By Implication

Truth is not always a defense to defamation claims in Virginia. Sometimes a statement that is literally true will nevertheless convey an implied message with defamatory meaning. Virginia thus recognizes claims for defamation by implication in addition to claims for libel and slander made expressly. The latest case to illustrate this principle is Cameron M. Jackson v. Liberty University, currently pending in the Western District of Virginia federal court.

The facts, according to the original complaint, are essentially as follows. Cameron Jackson is a former student and football player at Liberty University, a Christian university in Lynchburg, Virginia. Sarah Browning was on the university’s swim team. Jackson and Browning had been involved in a “casual sexual relationship” for several months. At an off-campus party in August 2015, Browning approached several members of the football team (including Jackson) and performed oral sex on them. Later that night, Jackson and Browning engaged in consensual intercourse in the living room of a friend’s apartment, where others could and did see them.

September 13, 2016

Rolling Stone Article Sufficiently “Of and Concerning” Phi Kappa Psi to Survive Dismissal

by Lee E. Berlik

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.

October 22, 2014

The Benefits of Apologizing for Libel or Slander

by Lee E. Berlik

Suppose you’ve spoken your mind about someone you don’t like and have been accused of defamation. Should you apologize? If you intentionally defamed the character of another person out of ill will or spite, you’re probably not going to want to apologize. But if you’ve either had a change of heart or a sudden realization that you’re about to get sued, there are some good reasons to say you’re sorry.

For one thing, apologizing–if done right–can mitigate the plaintiff’s damages. Plaintiffs who sue for libel or slander in Virginia aren’t just limited to recovery of out-of-pocket pecuniary losses; they can also recover damages for pure emotional distress. Even without proof of actual reputational harm, Virginia courts have allowed plaintiffs to recover compensation for mental anguish, embarrassment, and humiliation. In essence, the worse the plaintiff feels, the higher the potential for a large damages award. In the business world, studies of disgruntled customers have shown that they are more than twice as likely to forgive a company that performs poorly but then apologizes than one that offers payment in lieu of an apology. It stands to reason, then, that a plaintiff’s emotional distress will likely be diminished if you make a sincere, timely apology, and publish that apology to the same group to whom you made the defamatory remarks.
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June 27, 2014

Defamatory and Scandalous Material as Grounds to Seal Record

by Lee E. Berlik

In bankruptcy court, the presumption in favor of public access to judicial records can be overcome if “scandalous or defamatory matter” is contained in a paper filed therein. (See 11 U.S.C. Section 107). Curiously, there is an absolute judicial privilege for statements made in connection with and relevant to a judicial proceeding, so normally one wouldn’t expect to find “defamatory matter” in a court filing. Still, there is a relevance requirement to be entitled to the privilege, and there’s always a possibility that potentially defamatory or scandalous statements will be made in a court filing that have nothing to do with the underlying merits. And that’s exactly what happened in the recent case of Robbins v. Tripp.

Attorney John W. Tripp was handling a case in bankruptcy court when certain issues arose relating to perceived problems with his practice. The court ordered him to prepare and file a report containing details relating to his organization of files, supervision of staff, communication with clients, and related matters. The bankruptcy court instructed that the report be written “candidly and not as an advocate for any party to this matter.” Mr. Tripp moved for leave to file the report under seal, based in part on Section 107’s “scandalous or defamatory” provision. The motion was granted, and the trustee appealed.
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May 13, 2014

Insurer’s Duty to Defend Held Triggered by Defamation Claim

by Lee E. Berlik

Insurance against defamation claims is often found in policies providing coverage for liability arising from “personal and advertising injury.” In State Farm Fire and Casualty Co. v. Franklin Center for Government and Public Integrity, for example, the United States District Court for the Eastern District of Virginia examined a business liability insurance policy to determine whether State Farm was required to defend the insured in a lawsuit alleging claims for defamation and tortious interference. The court considered the plain language of the policy and its exclusions and ultimately held that State Farm had an obligation to defend its insured.

Franklin Center for Government and Public Integrity (“FCGPI”) operates the Watchdog.org website. GreenTech Automotive, Inc., filed a civil action against FCGPI alleging defamation and intentional interference with business and prospective business relations stemming from two articles posted on Watchdog.org. FCGPI was insured by a State Farm business liability policy, and State Farm brought a declaratory judgment action seeking a declaration of non-coverage based primarily on various policy exceptions.
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May 5, 2014

Defamation Action Against 50 Cent Unlikely to Get Dismissed Early

by Lee E. Berlik

If Sally Ferreira‘s allegations are true, she has a valid claim for defamation per se against rapper 50 Cent which could possibly result in a seven-figure damages award. Ms. Ferreira, an actress, model, and dancer, sued 50 Cent (real name Curtis J. Jackson, III) for defamation and emotional distress in federal court in New York, making the following allegations:

Ms. Ferreira has appeared in music videos for various artists such as 50 Cent, Kanye West, Jay Z, Nicki Minaj, Missy Elliot, and Lil’ Kim. In March, Ms. Ferreira participated in 50 Cent’s music video for the song “Big Rich Town,” filmed on the subway in the Bronx. Shortly after the video shoot, leaked photographs of Ms. Ferreira and 50 Cent taken during the shoot appeared on Hip Hop Weekly and MediaTakeOut.com, along with commentary speculating (erroneously) that the two were spotted riding the subway together and that they were romantically involved.
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April 7, 2014

Ripoff Report Maintains Section 230 Immunity Despite Lawyer’s Novel Challenges

by Lee E. Berlik

Concerns that freedom of online speech would be chilled if Internet Service Providers were liable for allegedly defamatory remarks made by posters to their sites led Congress to pass the Communications Decency Act (the “CDA”). The CDA shields companies serving as intermediaries for other parties’ potentially injurious speech from tort liability arising from users’ comments. Section 230 of the CDA provides that “[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” Although the CDA is interpreted broadly in light of Congress’ intent in passing the statute, an interactive computer service provider remains liable for its own speech.

To benefit from CDA immunity, (1) the defendant must be a provider or user of an interactive computer service; (2) the plaintiff’s claim must be based on information provided by another information content provider; and (3) the claim must treat the defendant as the publisher or speaker of the allegedly harmful speech. In Small Justice LLC v. Xcentric Ventures LLC, a federal court in Massachusetts found that Ripoff Report should not lose its CDA immunity even if it was found to have copyright ownership of the allegedly defamatory content, and even if, as the plaintiff alleged, it “intentionally caused…two defamatory per se publications to be prominently and frequently featured on Google…and other search engines.”
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December 11, 2013

The Importance of Context

by Lee E. Berlik

To be actionable as libel, a statement must reasonably imply false and defamatory facts when read in context. Context is important because the setting of the speech makes its nature apparent and helps determine how its intended audience would have interpreted the statement. In some cases, a literally false statement will not be actionable because contextual factors demonstrate that the true meaning of the statement is something other than what the words alone might suggest. In other words, the statement that a plaintiff must prove false to prevail in a defamation case is not necessarily the literal phrase published but rather what a reasonable reader would have understood the author to have said. In Farah v. Esquire Magazine, the United States Court of Appeals for the District of Columbia Circuit discussed the importance of these principles in a case involving political satire.

Jerome Corsi is the popular author of several New York Times bestsellers and the book “Where’s the Birth Certificate? The Case that Barack Obama is Not Eligible to be President” published by WND Books. Joseph Farah is the Editor and CEO of WND’s parent company, WorldNetDaily.com, a competitor of Esquire Magazine. On the day after “Where’s the Birth Certificate” was released, Esquire published an online article on “The Politics Blog” entitled “BREAKING: Jerome Corsi’s Birther Book Pulled from Shelves!” A copy of the Drudge Siren, a symbol of sensationalistic news, appeared above an image of the book’s cover. The article claimed that Farah had announced plans to recall and “pulp” the entire first run of the book and to refund purchaser’s money because three weeks earlier, Obama had produced his long form birth certificate indicating he was born in Hawaii. Later, Esquire published an update clarifying that the article was satirical, but the writer of the article referred to Corsi as an “execrable piece of shit” in an interview published on another online publication, The Daily Caller.

Farah and Corsi sued for defamation and other torts. According to the complaint, after the article was published, Farah received numerous requests for confirmation of the story and comment, and consumers began requesting refunds. The plaintiffs also claimed that they were attacked by book supporters and that book stores pulled the book from their shelves or refused to sell it. Farah and Corsi contended that Esquire only published the update after Farah indicated that he was exploring legal options and that the update was likewise false and defamatory. The district court granted Esquire’s motions to dismiss under both Federal Rule of Civil Procedure 12(b)(6) and D.C.’s Anti-SLAPP Act, D.C. Code § 16-5501 et seq.

October 7, 2013

Yasser Abbas’ Defamation Lawsuit Dismissed on Anti-SLAPP Grounds

by Lee E. Berlik

The District of Columbia’s anti-SLAPP act applies to actions that arise from an act in furtherance of the right of advocacy on issues of public interest. It provides that if a party makes a prima facie showing that the case involves the type of claim to which the act applies, the court will dismiss the case–with prejudice–unless the responding party can demonstrate that the claim is likely to succeed on the merits. D.C. Code § 16-5502(a)-(b). Although there has been some uncertainty as to whether D.C.’s anti-SLAPP act applies in federal court, the emerging trend has been to find that it does. On September 27, 2013, Judge Emmet G. Sullivan of the District of Columbia District Court found the statute applicable to a defamation lawsuit brought by Yasser Abbas and granted the defendant’s special motion to dismiss made under its terms.

Yasser Abbas is a wealthy businessman and political emissary for his father’s regime, the Palestinian Authority (“PA”). He sued Foreign Policy Group, LLC, and journalist Jonathan Schanzer for certain statements Schanzer made in an article he had written about the sons of the Palestinian president. The article was published in the “Argument” section of Foreign Policy Magazine and questioned whether the sons of the Palestinian president were “growing rich off their father’s system” and whether they had “enriched themselves at the expense of regular Palestinians” and U.S. taxpayers.

When the defendants responded with a motion to dismiss under the anti-SLAPP act, the first question was whether D.C.’s statute even applied in federal court, a question not yet decided by D.C.’s highest court. The issue boils down to whether the anti-SLAPP statute should be viewed as substantive or procedural, as federal courts sitting in diversity apply federal procedural laws but state substantive laws. Judge Sullivan looked to other circuits and found that many interpret similar state statutes as substantive and do apply them in federal diversity cases. Notably, the D.C. Circuit has upheld a district court decision denying a special motion to dismiss under the anti-SLAPP statute because it was not timely filed. Although that decision did not specifically hold that the anti-SLAPP statute was substantive, it implied as much. With this background, Judge Sullivan was persuaded that the anti-SLAPP law applies in federal court.

August 9, 2013

Erasure Statutes Do Not Erase History

by Lee E. Berlik

So your criminal record has been erased. Congratulations! Now you’re thinking about bringing a libel action against the news agencies who published stories documenting your arrest, because the local “deemer” statute states that you are deemed never to have been arrested and those embarrassing articles are still available online. Good idea? Have those articles, truthful at the time they were first published, become defamatory in light of recent events? Not according to a recent federal-court opinion out of Connecticut, which rejected Lorraine Martin’s claims for libel, false light, negligent infliction of emotional distress, and invasion of privacy in a case she filed against Hearst Corporation and other media outlets.

Lorraine Martin and her two sons were arrested in August 2010 and charged with possession of narcotics, drug paraphernalia and a controlled substance. Several news outlets published brief accounts of the arrest and charges in print and online. The charges were dismissed in January 2012 and qualified for erasure under Connecticut’s erasure statute which provides that thirteen months after a criminal charge is dismissed, the charge is erased and the person charged is deemed to have never been arrested. Ms. Martin asserted that because she qualified for erasure and had been deemed to have never been arrested, the defendants’ statements became false and defamatory. Ms. Martin asked the publications to remove the online articles and, when they refused, sued them.

Precepts of statutory construction dictate that the meaning of a statute be ascertained from its text and its relationship to other statutes. If the text is plain and unambiguous, the court will not consider extra-textual evidence. The “Erasure of Criminal Records” statute requires that court records and police and prosecutor records be erased following final judgment in a case in which the defendant is acquitted or the charge is dismissed or where a nolle prosequi is entered. Read as a whole, the statute concerns only the records of courts and law enforcement agencies and imposes requirements on them. For example, the statute prohibits the court clerk from disclosing information about erased charges. The court found that nothing in the statute suggests that the legislature intended to impose requirement on persons who work outside of courts or law enforcement.