Articles Posted in Privileges

Republication of a libel may be grounds for defamation liability. (See Restatement (Second) of Torts § 578; Lee v. Dong–A Ilbo, 849 F.2d 876, 878 (4th Cir. 1988) (“Under the republication rule, one who repeats a defamatory statement is as liable as the original defamer”)). Liability, however, is not automatic, and republished statements may be subject to certain privileges the same way original statements are. If a person hears a defamatory statement and proceeds to share that statement with another person, whether liability will be imposed under the republication rule will depend largely on the extent to which the person repeating the statement (i.e., spreading the rumor or gossip) adopts the statement as her own by expressing the assertion as a fact, rather than merely as a representation made by another person. If Dave says, “according to Steve, Paul is a convicted felon” and that statement is literally true (because Steve did say that) even though Paul is not actually a convicted felon, a qualified privilege may protect Dave from defamation liability even though he is guilty of republication.

The privilege is easier to establish when the statement being repeated is one made by the government or otherwise on a matter of public concern. Some states recognize a “neutral reportage” privilege, which protects the “accurate and disinterested reporting” of charges on matters of public concern made by a “responsible, prominent” party against a public figure. (See, e.g., Edwards v. National Audubon Society, Inc., 556 F.2d 113 (2nd Cir.)). Virginia hasn’t formally adopted the “neutral reportage” privilege, but it does adhere to a so-called “fair report” privilege, which accomplishes essentially the same thing in most situations.

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As I looked over a recent batch of opinions from the Western District of Virginia, one of them caught my eye for two reasons. First, I never imagined that a person might file a federal lawsuit against Golden Corral over an accusation of stealing chicken legs. We truly live in litigious times. Second, the case reminded me of the seldom-invoked “shopkeeper’s privilege” against defamation claims, otherwise known as merchant immunity. I don’t believe I’ve written about it before, so let’s dive in.

Here’s what happened in Leah Wynette Williams v. Lisa Annette Lipscomb, according to the opinion. It was Leah Williams’ daughter’s birthday, so to celebrate, they headed out to Golden Corral along with a sibling and Leah’s mother, Phyllis. They ordered the dinner buffet, for which they paid a fixed price. As they were eating, their server, Lisa Lipscomb, seemed to hover in the general vicinity of their table, sweeping the floor continuously. At one point, the server accused the family of attempting to smuggle food home for future consumption. She warned the family that the restaurant had security cameras, and went to get the manager, telling him that she had seen Phyllis putting chicken legs in her purse. The manager asked to look inside the purse. The family refused. Instead, Leah called 9-1-1, claiming to be “in fear for her family’s lives and safety.” They waited for an officer to arrive, had a brief discussion, and that was essentially the end of the matter. That is, until Leah sued the server, the manager, and the Golden Corral franchisee for defamation and various other claims.

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To establish defamation, a plaintiff in federal court must plausibly show the defendant (1) published (2) an actionable statement with (3) the requisite intent. An “actionable statement” is one that is (1) factual (as opposed to opinion); (2) false; (3) defamatory in nature; and (4) about the plaintiff. Certain potentially defamatory statements are protected from defamation actions by qualified privilege. Specifically, the privilege applies to communications between persons on a topic in which they share a common interest or duty. (See Larimore v. Blaylock, 259 Va. 568, 572 (2000)).

A plaintiff can overcome this privilege if he shows by clear and convincing evidence that (1) the statements were made with knowledge that they were false or with reckless disregard for their truth; (2) the statements were communicated to third parties who have no duty or interest in the subject matter; (3) the statements were motivated by personal spite or ill will; (4) the statements included strong or violent language disproportionate to the occasion; or (5) the statements were not made in good faith. (See Cashion v. Smith, 286 Va. 327, 339 (2013)).

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False police reports are privileged against defamation claims. But the precise nature of that privilege is not always clear. Is it a qualified privilege, subject to being lost through abuse or bad faith, or is it an absolute immunity that insulates all statements to police against defamation claims no matter the intentions of the speaker? The distinction can make all the difference in cases where reports are made to the police not for the purpose of actually reporting crime, or to enforce obedience to the law, or to see that guilty people are punished, but for the purpose of harassing another individual. The nature of the privilege for defamatory statements made to the police will generally depend on the context and timing in which the statements at issue were made.

In Virginia, reports to the police enjoy at least conditional protection. The uncertainty lies in whether that protection can be elevated to “absolute” status. A qualified privilege exists where a communication is made in good faith, on a subject in which the communicating party has an interest or owes a duty, to a party who has a corresponding interest or duty. Citizens are generally thought to have an interest, if not a duty, in keeping the streets safe by identifying potential criminals to the police, and the police obviously have a corresponding interest in receiving that information, so statements made to the police meet the basic test for qualified privilege. (See also Marsh v. Commercial & Sav. Bank of Winchester, 265 F. Supp. 614, 621 (W.D. Va. 1967) (finding statements made by bank tellers to the police were protected by qualified privilege)).

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A new law will go into effect on July 1, 2017, that creates what amounts to a qualified privilege against defamation actions for statements regarding matters of public concern that would be entitled to protection under the First Amendment. Under the amended and restated Va Code § 8.01-223.2, the immunity would be lost with respect to any statements made with actual malice (i.e., statements made with actual knowledge that they are false, or with reckless disregard for whether they are false) or “constructive knowledge” of the statements’ falsity. Significantly, because the General Assembly chose to incorporate the privilege into Virginia’s existing anti-SLAPP statute, if a defendant is successful in having a defamation case dismissed on grounds of this new statutory immunity, he may be entitled to reimbursement of his attorneys’ fees. The amendment appears to be designed to drastically expand Virginia’s anti-SLAPP statute (which had previously been limited to statements made at public hearings) and will almost certainly lead to an uptick in plea-in-bar hearings seeking quick dismissals and fee awards.

What is not yet clear to me is why “constructive knowledge” of falsity was included as an exception to the immunity. A person has constructive knowledge of a fact if, through the exercise of reasonable care, he should have known it, even if he didn’t actually know the fact. Including constructive knowledge as an exception eviscerates much of the statute’s potential deterrent effect. This is because virtually every facially valid defamation claim will involve an allegation that the defendant was had at least constructive knowledge that what he was saying was false and that he acted negligently with respect to uncovering the truth. To state a prima facie case for defamation, a private plaintiff must allege that the defendant either knew that the statement was false, or, believing the statement to be true, lacked a reasonable basis for such belief, or acted negligently in failing to determine the facts on which the publication was based. (See Lewis v. Kei, 281 Va. 715, 725 (2011)). In other words, if a plaintiff fails to allege that the defendant had at least constructive knowledge of falsity, the case will be dismissed on demurrer regardless of the anti-SLAPP immunity. On the other hand, if a plaintiff does allege (and eventually prove) constructive knowledge, the immunity will not apply. In short, it does not appear to me that there will be many situations in which this new “public concern” immunity will come into play. I suppose defendants will start opting to file pleas in bar in lieu of demurrers. We’ll have to wait and see how courts deal with this issue.

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Clever defamation lawyers seem to have developed a new technique for bringing lawsuits against the rich and powerful. Step One: Announce to the world that a public figure has mistreated you in some way. Step Two: Wait for the public figure to issue a statement disputing your story and proclaiming innocence. Step Three: Sue the public figure for defamation on the theory that the public figure falsely communicated to the public that you are a liar. Sound familiar?

In 2005, California lawyer Tamara Green told the Today Show that Bill Cosby drugged and groped her. Years later, speaking to Newsweek, Cosby’s publicist responded to Green’s accusation as follows: “This is a 10-year-old, discredited accusation that proved to be nothing at the time, and is still nothing.” Ms. Green then sued Cosby for defamation, complaining that “in an effort to continue the public branding of [Green] as a liar, Defendant Cosby…stated explicitly, stated in effect, stated by innuendo, implied, and/or insinuated, that Defendant Cosby’s drugging and sexual assault against Plaintiff Green never occurred, and therefore that Plaintiff Green lied and was a liar.”

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Redouane Goulmamine, M.D., is physician based in Petersburg, Virginia, who conducts business under the name “The Petersburg Spine Center.” According to a complaint he filed in the Richmond Division of the Eastern District of Virginia federal court, he became aware that several employees of CVS Pharmacy were providing false information about him to patients and refusing to fill prescriptions he had written. CVS eventually made it official, sending him a letter notifying him that the pharmacy would no longer fill his prescriptions and implying its decision was based on its belief that Dr. Goulmamine had been writing pain-pill prescriptions for drug addicts.

Dr. Goulmamine sued CVS for defamation, insulting words, and tortious interference with contract/business expectancy. The complaint recites nearly two-dozen conversations with CVS employees alleged to be defamatory. Some of the statements were clearly statements of opinion (e.g., “he is filling too many prescriptions”), but the court noted that several alleged statements amounted to statements of fact that were claimed to be false. These statements primarily fell into two camps: (1) false factual statements about Dr. Goulmamine himself (e.g., that he was in jail; that he had overprescribed to a pregnant patient; that one of his patients had died from a Xanax overdose; and that someone in his office was producing fraudulent prescriptions); and (2) false or misleading factual statements about Dr. Goulmamine’s standing in relationship to regulatory bodies (e.g., that the DEA, FBI, or Board of Medicine was investigating him or had revoked his license, or that he was being “audited.”)
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As a general rule, both the United States and the Commonwealth of Virginia enjoy sovereign immunity, which shields the government entities and their agencies from defamation lawsuits as well as most other types of litigation. The law becomes trickier when applied to the employees of those governments. Federal employees are immune from defamation claims based on things they said while acting within the scope of their employment. Those who work for the Commonwealth of Virginia, on the other hand, or one of its counties, cities, or towns, don’t have it so easy. Virginia employees do enjoy some degree of sovereign immunity for their actions, but–with limited exceptions–the protection they are afforded is less than the absolute protection federal employees receive. Like federal employees, state and local employees must be acting within the scope of their employment to be potentially entitled to claim immunity, but state employees need to meet additional criteria before they will be granted immunity.

The Virginia Supreme Court has described sovereign immunity as “a rule of social policy, which protects the state from burdensome interference with the performance of its governmental functions and preserves its control over state funds, property, and instrumentalities.” This rule of social policy is essentially based on the following goals: (1) to protect the “public purse” (i.e., to preserve tax dollars), (2) to address the concern that officials might be unwilling to carry out their public duties if they lived in constant fear of being sued, (3) to encourage citizens to take public jobs, and (4) to permit the orderly administration of government by discouraging improper influence through vexatious litigation. (See Messina v. Burden, 228 Va. 301, 308 (1984)). Consideration of these policies is what guided the Virginia courts to develop a rule affording immunity to some state and local employees but not others.
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The First Amendment guarantees, among other freedoms, “the right of the people…to petition the Government for a redress of grievances.” This right to petition is part of the First Amendment‘s free-speech protection, as it pertains to a particular form of freedom of expression. A lawsuit aimed at deterring or punishing citizens from exercising this First Amendment right, or from otherwise exercising their right to freely express their political views or engage in discourse on a matter of public concern, is known as a “SLAPP” suit. (SLAPP stands for “Strategic Lawsuit Against Public Participation”). SLAPP suits usually don’t advertise the fact that they seek to chill the expression of ideas; they are often disguised as legitimate lawsuits for defamation or some other tort.

A majority of states have passed anti-SLAPP laws designed to facilitate the identification and early dismissal of frivolous SLAPP suits. The laws differ from state to state, but generally allow a defendant to make a “special” motion to dismiss if he can show the claim arises from a statement made in connection with a public issue in furtherance of the right to free speech. Significantly, if the court grants one of these special motions to strike, the anti-SLAPP statutes generally allow the defendant to recover his attorneys’ fees. Attorneys’ fees are normally not recoverable in defamation actions, so this can be a powerful deterrent against meritless lawsuits.
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Workplace defamation actions face a number of obstacles. The one that probably comes up the most is the issue of qualified privilege. Employees often claim that a manager or supervisor defamed them in the course of a termination or negative performance evaluation. These statements are usually protected from defamation claims, as a limited privilege applies to communications made on any subject matter in which the person communicating has an interest, or with reference to which he has a duty, if made to another person having a corresponding interest or duty. In other words, in situations where it is necessary or expected that one employee will make statements concerning the performance of another (such as a performance evaluation), a qualified privilege will apply.

Another defense that is sometimes raised in the employment context is that of “intra-corporate immunity.” This is a defense borrowed from the law of conspiracy. Because a conspiracy, by definition, requires at least two legally distinct persons, and because two employees acting within the scope of their employment duties are both acting as agents of their employer, a conspiracy cannot be formed between those two employees due to the unity of interest and absence of a second entity. “A corporation cannot conspire with itself,” is the oft-used way of describing the reasoning behind the doctrine.
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