Actual malice is an important concept in Virginia defamation law. Public figures, public officials, and limited-purpose public figures all must prove that a defamatory publication was made about them with actual malice as part of their case in chief in any defamation action brought on the basis of that publication. Even private plaintiffs often seek to prove actual malice, such as when trying to show that a defendant lost or abused a qualified privilege. As discussed earlier on this blog, “actual malice” in this context means something different than spite or ill will. When a defendant publishes a false and defamatory statement with actual malice, it means the defendant knew the statement was false or, at a minimum, acted with reckless disregard as to truth or falsity. Recklessness amounting to actual malice may be found, for example, where a publisher fabricates an account, makes inherently improbable allegations, relies on a source where there is an obvious reason to doubt its veracity, fails to pursue the most obvious available sources for corroboration, or deliberately ignores evidence that calls into question his published statements.
So how do you prove actual malice? As you might imagine, it’s not very often that the defendant openly admits to intentionally lying. Therefore, most of the time, plaintiffs must resort to indirect and circumstantial evidence to prove their claims. They can do this by using
all the relevant circumstances surrounding the transaction…provided they are not too remote, including threats, prior or subsequent defamations, subsequent statements of the defendant, circumstances indicating the existence of rivalry, ill will, or hostility between the parties, facts tending to show a reckless disregard of the plaintiff’s rights, and, in an action against a newspaper, custom and usage with respect to the treatment of news items of the nature of the one under consideration.
(See Herbert v. Lando, 441 U.S. 153, 164 n.12 (1979) (quoting 50 Am. Jur. 2d Libel and Slander § 455 (1970))). To obtain such evidence in advance of trial, parties may resort to the discovery process, using tools such as interrogatories, requests for production of documents, and third-party document subpoenas.