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

December 29, 2021

Retweets Do Not Extend the Statute of Limitations

The statute of limitations for defamation claims in Virginia is just one year from the date of publication. “Publication” in this context refers to the communication of the defamatory statement to a third party. A person who repeats a defamatory statement originally made by someone else can sometimes be held liable for republishing the statement. That republication would constitute a new defamation claim and trigger a new one-year period under the statute of limitations. Republication liability, however, generally requires some evidence that the person repeating the defamation is vouching for the statement’s accuracy or adopting it as his/her own. Merely sharing someone else’s defamatory statement, without adding to it in some way or directing it to a new audience, will usually not give rise to defamation liability and will therefore not extend the statute of limitations beyond one year from the original publication.

In the Lokhova v. Halper case I wrote about last year, the plaintiff sued The New York Times and other publications roughly two years after they published articles about her that she believed were defamatory. She argued that her claim was not time-barred because several people had tweeted links to the articles in question within the 12-month period prior to her filing of the lawsuit. The court rejected her argument and dismissed the case, finding that merely sharing an article with others does not necessarily amount to republication. The article was already on the internet. Re-tweeting it, opined the court, is the equivalent of sharing a hard-copy book or magazine with another person. Doing so does not amount to a new publication that would trigger a new one-year period within which a defamation claim might be brought.

March 5, 2018

Online Stalking vs. Internet Defamation

by Lee E. Berlik

Harassment and bullying can take place in many different forms. Sometimes the conduct is actionable in a court of law, and sometimes it isn’t. Sometimes it involves defamation of character, whereas other times the harassment takes the form of electronic stalking. Before scheduling an appointment to speak with a lawyer, you should know the difference. In a nutshell: if the bad actor’s harassing activity consists primarily of spreading false rumors about a person on social media, then we’re most likely dealing with the law of defamation. Conversely, if the harassment consists of persistent threats of sexual assault or physical bodily harm, you’re dealing with the law of criminal stalking. Defamation occurs when a person publishes an “actionable statement” with the requisite intent. Stalking occurs when a person “on more than one occasion engages in conduct directed at another person with the intent to place, or when he knows or reasonably should know that the conduct places that other person in reasonable fear of death, criminal sexual assault, or bodily injury to that other person or to that other person’s family or household member.” (See Va. Code § 18.2-60.3). I write about defamation law all the time, so the rest of this post will focus on what stalking is and how it is different.

A defendant commits the crime of stalking when the following elements are met:

The defendant directed his or her conduct toward the victim on at least two occasions;
The defendant intended to cause fear or knew or should have known that his or her conduct would cause fear; and
The defendant’s conduct caused the victim to experience reasonable fear of death, criminal sexual assault, or bodily injury.

September 22, 2017

A Guide for Revenge Porn Victims

by Lee E. Berlik

Revenge porn is generally defined as a form of online harassment in which sexually explicit photographs or videos of another individual (usually a former partner) are either taken or shared with others without the consent of the person shown in the images. Perceived “revenge” is sometimes the motive, but not always. Sometimes images are circulated merely for titillation or profit. For this reason, some prefer to use terms like “nonconsensual pornography” or “sexual cyberharassment.” Whatever you call it, if images are shared without the consent of the subject, the results can be devastating to victims and can lead to public degradation, social isolation, and professional humiliation.

Revenge porn laws differ from state to state. Virginia law allows victims to sue for damages and reimbursement of attorneys fees, and makes several forms of revenge porn punishable as a crime. Virginia law is not as tough on revenge porn as some other states, however. In Virginia, the dissemination of nude photos taken with the subject’s consent (e.g., selfies) will generally not be punishable under Virginia’s revenge-porn statutes absent an intent to coerce, harass, or intimidate. So while motive usually doesn’t matter much from the perspective of the victim, it can make all the difference in terms of legal remedies available.

December 7, 2016

Isn’t Fake News Defamation?

by Lee E. Berlik

With all the hand-wringing over fake news these days, many are wondering whether it isn’t actionable libel to publish false news accounts. Take “Pizzagate,” for example. Shortly before the election, rumors began circulating on the Internet that Hillary Clinton and her former campaign manager, John Podesta, were running a child sex-slave operation in the back of family-friendly Washington pizzeria Comet Ping Pong. As ridiculous as that sounds, the message reached a massive audience on social media and before long, the restaurant was receiving death threats and other threatening messages on Instagram, Facebook, and Twitter. People started trashing the business on Google and Yelp. Eventually, a young man from North Carolina traveled to the restaurant to personally investigate the story and rescue any sex slaves in need of his assistance. He brought an assault rifle with him. It’s probably safe to assume that Comet’s business has suffered.

If Hillary Clinton is running a child sex-slave ring, she isn’t doing it at Comet Ping Pong: the story was pure fiction. So what’s a business like Comet to do? Defamation claims are usually about the protection of individuals’ personal reputations. In this situation, false news articles were being published about Comet’s business itself rather than about any particular individual associated with the business. In short, it doesn’t matter. Corporations are treated like people in most contexts, and this one is no different. Comet could conceivably sue for trade libel, common-law defamation, tortious interference, or business conspiracy, among other claims. Let’s focus on the commercial defamation angle.

July 29, 2015

Threats to Destroy Reputation May Constitute Blackmail

by Lee E. Berlik

Online review sites wield enormous power, and some enterprising consumers have begun leveraging that power to extract refunds or other benefits from businesses worried about protecting their online reputations. Suppose you’re at an orthodontist’s office being fitted for some $5000 braces when the orthodontist accidentally pierces the inside of your cheek. You decide that (a) the doctor is incompetent and (b) the world should be made aware of that fact for the good of mankind. Your first instinct is to go to Yelp or HealthGrades and write a scathing review warning the public about the dangers of dealing with this orthodontist. But then you realize you might be able to gain even greater satisfaction another way: you contact the doctor, tell him of your plans to write a negative online review, and offer to refrain from posting the review if he will waive the $5000 charge for the braces. You get free braces, and the doctor gets to preserve his 5-star Yelp rating. Win-win, right?

Consumers have a First Amendment right to express their opinions regarding products and services they have received, but things get a little tricky when people threaten to exercise that right as a means to extract money from someone. Some would call this blackmail, known in Virginia as extortion. Extortion is governed by Va. Code § 18.2-59, which provides in pertinent part, “Any person who (i) threatens injury to the character…of another person,…and thereby extorts money, property, or pecuniary benefit or any note, bond, or other evidence of debt from him or any other person, is guilty of a Class 5 felony.”
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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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May 6, 2012

Facebook “Likes” Not Protected Speech, Says Virginia Court

by Lee E. Berlik

Think twice before clicking that Facebook “like” button. You may think you’re expressing a constitutionally protected right to express support for a political candidate, for which you cannot be terminated, but Judge Raymond A. Jackson of the Eastern District of Virginia recently ruled that merely “liking” a candidate on Facebook is not sufficiently substantive to warrant First Amendment protection. Expect this ruling to get appealed.

Sherriff B.J. Roberts of the Hampton Sherriff’s office was up for re-election when he learned that several of his employees were actively supporting one of his opponents, Jim Adams. The employees alleged that Sherriff Roberts learned of their support of Adams because they “liked” Adams’ Facebook page. They also attended a cookout with Adams and told others of their support, but there was no evidence that the Sherriff was aware of these activities. One employee sported a pro-Adams bumper sticker on his car and used choice words to describe the Sherriff’s campaign literature in speaking with a colleague at the election booth.

After winning re-election, Sherriff Roberts did not retain the employees. Sherriff Roberts claimed various benign reasons for the firings, including a reduction in force and unsatisfactory work performance. The employees sued Sherriff Roberts alleging that the firings were in retaliation for exercising their right to free speech and that the Sherriff had violated their right to free political association. Sherriff Roberts argued that plaintiffs had not alleged protected speech or political association and that he was entitled to qualified and sovereign immunity even if plaintiffs’ speech was protected.

March 31, 2011

AP Reporter Accused of Libel by Tweet

by Lee E. Berlik

Did an Associated Press reporter commit a foul against an NBA referee earlier this year by defaming him on Twitter during a league game? On March 14, 2011, National Basketball Association official Bill Spooner filed a federal defamation case against Associated Press sports beat reporter Jon Krawczynski for a brief item that Krawczynski wrote on his Twitter account that suggested Spooner was officiating a game dishonestly. During an NBA game between the Minnesota Timberwolves and the Houston Rockets on January 24, 2011, Krawczynski tweeted (twote?) that Spooner told Minnesota coach Kurt Rambis after an allegedly bad call against a Minnesota player that Rambis would “get it back,” and that Spooner went on to compensate for the incorrect call with a “make-up” call against Houston.

Spooner says that although he had a brief verbal exchange with Rambis about the foul call, he said nothing to the coach about giving anything back to the Timberwolves. His lawsuit, filed in the U.S. District Court for the District of Minnesota, says Krawczynski defamed him by telling Krawczynski’s Twitter followers in effect that Spooner had engaged in a “form of game fixing.” Spooner discusses in his complaint that the NBA was recently caught up in a controversy involving former ref Tim Donaghy, who pleaded guilty in federal court in 2007 after being accused of betting on games that he officiated.

The NBA itself discouraged the lawsuit, although it doesn’t believe Spooner actually cheated either. According to a league spokesman, “We investigated the content of the tweet when it appeared, found it to be without substance, and informed Mr. Spooner that we considered the matter closed. We subsequently advised Mr. Spooner’s lawyer that we did not think suing a journalist over an incorrect tweet would be productive.”

March 24, 2011

“Girls Gone Wild” Defamation Suit Nets $3 Million

by Lee E. Berlik

Kids these days. The use of fake IDs by teens is nothing new, but when that ID contains the name of a real person, and the imposter goes on to do naughty things while posing as someone else, the law of defamation can come into play. And if you’re inclined to post a YouTube video of that identity thief engaged in acts of questionable moral character, you’d better conduct some due diligence to ensure you don’t destroy someone’s reputation. That’s a lesson that Joe Francis, the entrepreneur behind the risqué “Girls Gone Wild” videos, may have just learned as a result of a $3 million default judgment entered against him earlier this month in New Jersey federal court.

In a complicated scenario typical of the Internet age, in 2008 Francis wanted to take advantage of that year’s scandal involving New York Gov. Eliot Spitzer and a prostitute named Ashley Alexandra Dupre. He offered Dupre $1 million to appear in a magazine spread and participate in a promotional tour for “Girls Gone Wild,” but withdrew his offer when he found that he already had useful footage of Dupre from five years before, when she was 17 years old.

After Francis used the footage, Dupre sued him, claiming that she was underage and did not understand the release she had signed. However, Francis was able to come up Fake IDs.jpg with a video of Dupre providing consent to appear in “Girls Gone Wild,” stating that she was 18, and showing the driver’s license of another woman who was of legal age. Dupre then dropped her suit against Francis.

December 21, 2009

Understanding Defamation

by Lee E. Berlik

The tort of defamation is widely misunderstood. Social media outlets like Facebook, LinkedIn and Twitter, which allow easy publication and dissemination of information to a wide audience, are leading to a rise in defamation lawsuits in Virginia and around the country. To be insulted by another, especially when it happens in a public forum, can be hurtful and embarrassing. Whether the insult constitutes actionable defamation under Virginia law, however, or whether it is sufficient to satisfy Virginia’s “insulting words” statute, can present some complicated issues, often implicating the United States Constitution. Relevant considerations for any lawyer examining a defamation claim include the type and context of the speech, the identity of the speaker, the identity of the plaintiff, and the existence of qualified immunity or other defenses.

In Virginia, defamation includes both libel (written defamation) and slander (spoken defamation). There is no need for clever mnemonic devices to distinguish libel from slander, because Virginia law makes no meaningful distinction between the two and speaks only of the merged tort of defamation. The essence of any defamation claim is that a defendant published a false factual statement that concerns and harms the plaintiff or the plaintiff’s reputation. While it is common to recite that “truth is a defense,” that is not technically true, as falsity is a required element of the plaintiff’s proof.

Proof of several elements is required. The defendant must know that the statement was false or must have lacked a reasonable basis for believing it to be true. Defamatory words that cause prejudice to a person in her profession are actionable as defamation “per se,” meaning that it is not necessary to prove actual injury to reputation. Expressions of opinion, however, are constitutionally protected as free speech. Therefore, mere statements of opinion cannot form the basis of a defamation lawsuit.