Truth and Falsity Category Archives — Page 2 of 3 — The Virginia Defamation Law Blog Published by Reston Defamation Attorney — Virginia Slander & Libel Lawyer

May 26, 2015

Defamation Claim Against Maritime Lawyer Goes Forward

The case of AdvanFort Co. v. International Registries, Inc. involves a defamation claim brought by AdvanFort and its owners against their former attorney, maritime lawyer John Cartner, and The Maritime Executive, a maritime industry journal. According to the complaint, shortly after AdvanFort complained about getting billed over $28,000 for less than two weeks’ worth of legal services, Cartner wrote an article entitled “Self-Described AdvanFort ‘Billionaire’ May Not Be” in which he made numerous assertions allegedly calculated to lower AdvanFort in the estimation of the maritime community. Cartner responded that his article amounted to mere rhetorical hyperbole, which is not actionable, and that the article was not written with malice.

Defamation requires either a provably false factual assertion or a statement that can be reasonably interpreted as stating or implying actual facts about a person. Rhetorical hyperbole is protected under the First Amendment and cannot form the basis of a defamation claim. (See Milkovich v. Lorain Journal Co., 497 U.S. 1, 17, 21). The Fourth Circuit has described rhetorical hyperbole as a statement that “might appear to make an assertion, but a reasonable reader or listener would not construe that assertion seriously.” (See Schnare v. Ziessow, 104 Fed. App’x 847, 851 (4th Cir. 2004)).

In analyzing whether a particular statement will be actionable as defamation in Virginia, it’s usually helpful to review recent cases to see how actual judges have ruled. It’s often not entirely clear whether a statement is an assertion of fact, an expression of opinion, or rhetorical hyperbole. Here’s how Judge O’Grady ruled with respect to the various statements at issue in this article:
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February 2, 2015

Statements Truthful When Made Won’t Become Defamatory Later

by Lee E. Berlik

The Internet is full of factual assertions that were true at the time they were first published, but no longer are. Can future events modify the factual and legal landscape in such a way as to create defamation liability where there initially was none?

Earlier I wrote about the case of Lorraine Martin v. Hearst Corporation. Lorraine Martin brought a defamation action against several news outlets which had published accounts of her arrest for drug-related charges. It’s not that she wasn’t arrested; her complaint was that the charges were dropped in 2012 and that the publications refused to remove the original articles, which were still available online and causing harm to her reputation. The statements had become false over time, she argued, because Connecticut has an “erasure statute” which provides that after a certain amount of time after the dismissal of a criminal charge, the charge is deemed “erased” and the person’s arrest record is wiped clean. The District of Connecticut rejected this argument, finding nothing in the statute to suggest that the legislature had intended to impose any requirements on anyone outside of courts or law enforcement. On January 28, 2015, the Second Circuit affirmed the dismissal of her claims.

On August 26, 2010, the Connecticut Post, Stamford Advocate, and Greenwich Time, all published articles online stating that Martin had been arrested and charged with numerous drug violations after police received information that a pair of brothers was selling marijuana in town. News 12 Interactive, LLC, published an Internet article reporting that Martin was arrested “after police say they confiscated 12 grams of marijuana, scales and traces of cocaine from [her] house.” Martin conceded that these statements were all true at the time they were originally published. (Note: even before reading the court’s analysis, it should be apparent to most of you that when a plaintiff admits her defamation action is based on a true statement, there are going to be problems.)

November 4, 2013

Why Suing Your Critics Is Not Always a Good Customer-Relations Strategy

by Lee E. Berlik

Emily Hughes is an unhappy customer of Johnson Utilities, which supplies water to parts of Arizona. Emily posted various complaints to a Facebook group in which she described “yellow water” coming from her faucets and expressed dismay about low water pressure. Until recently, I had never heard of Emily Hughes, Johnson Utilities, or the allegations about yellow water being supplied to certain residents of Arizona. But Johnson Utilities decided that the appropriate means to address the situation was to sue Emily for defamation. That caused the story to show up in my news feed, mostly in the form of opinion pieces mocking the lawsuit.

The reason the lawsuit strikes so many as silly is that Emily Hughes didn’t just write about the yellow water entering her home, she took a video of it. The video clearly shows yellow water coming out of a faucet. She uploaded the video to a Facebook page entitled “Citizens Against Johnson Utilities”–a page ostensibly formed by citizens concerned with the local water provider’s environmental practices as well as low water pressure in the area. The site was renamed “The San Tan Valley Safe Water Advocates” in August. CBS 5 News included Emily’s video in a televised report about consumer complaints regarding the water supplied by Johnson Utilities.

At first glance, the complaint appears to have very little merit. Johnson Utilities complains about things that are generally not actionable in a court of law, like Emily expressing “extreme hostility” towards Johnson Utilities, going on a “ceaseless vendetta,” and posting various “disparaging statements” on Facebook. Johnson even makes the yellow water.jpg odd allegation that Emily’s opposition to a rate increase was part of a scheme to defame the company. The lawsuit suggests she would “oppose any rate changes that could be beneficial” to the utility company, without recognizing the possibility that Emily might just prefer not to have to pay more money for water.

October 21, 2013

Defamation Claim Dismissed for Failure to Plead Exact Words

by Lee E. Berlik

To survive demurrer, claims for defamation must set forth the exact language of the alleged statements claimed to be defamatory. Some Virginia judges (like Judge Charles E. Poston of Norfolk) refer to this requirement as a “heightened pleading” standard, but care should be taken not to confuse this terminology with the heightened pleading standard for fraud claims, which generally requires that fraud allegations identify the time, place, content, and maker of each alleged fraudulent statement. No such particularity is required for defamation claims in Virginia.

Judge Poston recently sustained a demurrer to a defamation claim that failed to allege the specific words spoken. In Owens v. DRS Automotive Fantomworks, Inc., Mr. and Mrs. Owens tasked DRS and Daniel Short with converting their 1960 Thunderbird into a 1960 Thunderbird Police Interceptor. The Owens paid DRS two deposits of $15,000 each which DRS used for restorations, repair work and part expenditures including the purchase of a Police Interceptor from Alexander Thiess. When the defendants refused to give the Owens documentation of the expenditures, the Owens asked DRS to return the vehicle. DRS demanded that the Owens pay an additional $3,313. The Owens refused and sued DRS. DRS filed a counterclaim alleging that the Owens defamed it in statements made to Mr. Theiss and his superiors. The Owens demurred to the defamation counterclaim, arguing that it failed to allege sufficient facts.

The allegedly defamatory statements were that the Owens described Mr. Short’s business practices as illegal, criminal, shady and not on the up-and-up; asserted that Mr. Short and DRS were under criminal and civil investigation and that they likely stole the Police Interceptor; claimed Mr. Short was a “liar” regarding the history of the Police Interceptor, and that he deceived and overcharged the Owens for the Interceptor. The counterclaim, however, contained only two verbatim quotes: that the Owens called Mr. Short a “liar” and that DRS sold vehicles with “open-titles.” The court found the vague allegations insufficient.

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.

July 29, 2013

Mann’s Defamation Suit Survives Anti-SLAPP Motion

by Lee E. Berlik

Well-known climate scientist Michael Mann made good on his threat to sue the National Review and columnist Mark Steyn for defamation based on statements made online questioning Mann’s global warming research. In response, the defendants filed a special motion to dismiss under D.C.’s anti-SLAPP statute, arguing that the online statements were made in furtherance of the right of advocacy on an issue of public interest. The court found that the anti-SLAPP statute did apply but nevertheless denied the motion.

Mann is a professor of meteorology and the Director of the Early System Science Center at Penn State. He is well known for his research on global warming and has published papers and books on the subject. The University of East Anglia’s Climate Research Unit (CRU) exchanged emails with Mann which were later misappropriated. In one email, a CRU scientist referred to Mann’s “nature trick” of adding in real temperatures for the last twenty years and from 1961 to “hide the decline.” Upon discovery of the emails, the University of East Anglia investigated the matter and concluded that the honesty and rigor of the CRU scientists was not in doubt but that the email referencing Mann’s “nature trick” was misleading.

In 2010, Penn State initiated an investigation of Mann and the CRU emails. The investigatory committee was comprised entirely of Penn State faculty members. Based on an interview with Mann, the committee cleared Mann of three of four charges against him. The last charge involved an allegation that Mann’s research might deviate from accepted norms. The committee interviewed an MIT professor who was critical of Mann’s work and later expressed dismay with the scope of the investigation and the committee’s analysis of the CRU emails.

June 24, 2013

Pilot’s Defamation Case Goes to Supreme Court

by Lee E. Berlik

Applying Virginia law, the Colorado Supreme Court upheld a $1.4 million jury verdict against Air Wisconsin back in March of 2012, finding it was responsible for slander of a former pilot and not entitled to immunity. On June 17, 2013, the United States Supreme Court granted certiorari to consider the question of whether a court can deny the immunity provided by the Aviation and Transportation Security Act (ATSA) without a prior determination that the air carrier’s statements to the Transportation Security Administration (TSA) were materially false.

After the September 11th terrorist attacks, Congress passed the ATSA in order to encourage the reporting of security concerns. The ATSA requires airlines and their employees to report potential security threats to the TSA. Reporting parties are given broad immunity and may only be liable for reports made with actual knowledge that the report was false, inaccurate, or misleading, or with reckless disregard as to the truth or falsity of the report. Because failure to report can result in civil penalties, shorthand for the policy has become known as “when in doubt, report.”

William Hoeper was a pilot for Air Wisconsin Airlines. Hoeper apparently had failed three proficiency exams and abandoned his fourth attempt. Approximately ninety minutes into the test, Air Wisconsin contends that Hoeper ran the simulator out of fuel, flamed out the engines, and nearly crashed. According to Air Wisconsin, Hoeper knew he would be terminated and was acting irrationally, yelling and cursing at his instructors. Hoeper’s version of the story is that Air Wisconsin was conducting the simulator test unfairly, and a personal dispute was escalated into a matter of national security.

June 10, 2013

Lost Profits Caused by Defamation Must Be Proven with Competent Evidence

by Lee E. Berlik

On May 31, 2013, the Fourth Circuit reversed a $4 million verdict against U.S. Bancorp for defamation, finding that the amount was excessive and/or unsupported because the jury apparently based its verdict on expert testimony of lost profits admitted in violation of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). Still, in MyGallons, LLC v. U.S. Bancorp, the court found that Bancorp’s public statements refuting the plaintiff’s press release were sufficient to support defamation liability, so it ordered a new trial on damages only.

When Steve Verona conceived of a prepaid consumer gas card program, he contacted Voyager Fleet Systems, Inc., a subsidiary of U.S. Bancorp, about processing the program’s payments. Voyager operates a payment processing network for commercial and fleet gas purchases but was not set up to issue consumer gas cards. Verona explained his program to Bancorp executives, one of whom directed Verona to work with an authorized reseller of the Voyager payment processing system, “GoGas,” as Bancorp would not work with him until the program was larger. GoGas submitted and Bancorp approved Verona’s fleet card application and issued Verona several dozen cards using the Voyager payment network. Verona distributed the cards to family and friends who used the cards to purchase gas. Verona branded the program “MyGallons.”

Internally, Bancorp stated that MyGallons was an approved Voyager fleet card account and that it was working to expand the program. Bancorp began drafting a new contract for its relationship with MyGallons. Bancorp, GoGas and Verona worked to design fleet cards with MyGallons and Voyager logos on them.

June 3, 2013

This Is Why Exact Words Must Be Pleaded

by Lee E. Berlik

Defamation claims carry a particularity requirement, though the degree of particularity required is not as high as with fraud claims. While it is not necessary, for example, to specifically identify in the complaint the persons reading or hearing the statement, or to describe all the surrounding circumstances existing at the time the statement was allegedly made, what is required is to identify the exact words claimed to be defamatory.

This rule exists for good reason: it helps free court dockets of cases in which a plaintiff’s characterization of a statement (which is often exaggerated or unreasonable) forms the basis for the claim rather than the statement itself. Courts need to be able to make a threshold determination of things like whether the words at issue appear to be about the plaintiff, whether they are capable of being reasonably interpreted as a statement of fact, and whether they would tend to degrade the plaintiff in the eyes of the community. Defamatory meaning is a huge component of the test for liability, and the precise language used is crucial to the existence of an actionable claim.

Take the lawsuit filed in D.C. last month against NBA great LeBron James by a man claiming to be his father, Leicester Bryce Stovell.

March 1, 2013

Fabricated Quotations Actionable if Harmful to Reputation

by Lee E. Berlik

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.”