Defamation by Implication in Virginia

Is truth an absolute defense to a defamation claim? Despite what you may have read elsewhere, the answer (here in Virginia) is no. Aside from the fact that falsity is an element of the claim that needs to be proven by the plaintiff (rather than an issue to be raised as a defense), “defamation by implication” is a developing area of the law in which liability can be based on a statement that is literally true. Not all implications and inferences will be actionable; the speaker must have intended to imply a defamatory meaning. (See Pendleton v. Newsome, 290 Va. 162, 174 (2015)). To prevail in a defamation-by-implication case in Virginia, a plaintiff must prove:

  1. that the defendant made the statements alleged in the complaint,
  2. that the statements, even if facially true, were designed and intended by the defendant to imply a defamatory meaning,
  3. that in the light of the circumstances prevailing at the time they were made, the statements reasonably conveyed that defamatory implication to those who heard or read them, and
  4. that the plaintiff suffered harm as a result.

Before a defamation claim will get to a jury, a judge will need to make a threshold determination regarding whether the statement in question can be reasonably interpreted as defamatory under applicable legal principles. A statement you might interpret as defamatory isn’t going to cause much damage to your reputation (and therefore will not support a defamation claim) if other people reading or hearing the statement don’t understand what it means. Sometimes, the context in which a statement is made makes all the difference as to how it will be interpreted and understood. When considering all the surrounding facts and circumstances, an undeniably true statement may nevertheless convey a false and defamatory impression.

This is where inferences come into play. Sometimes the true meaning of a statement comes not only from the actual words spoken, but from inferences fairly attributable to those words. In other words, a defamatory statement can be expressedmisdirection.jpg indirectly rather than directly. It is up to the trial judge to determine whether a statement alleged to be defamatory is reasonably capable of the defamatory meaning the plaintiff ascribes to the statement. To be actionable, the implication inferred from the statement must be one that a reasonable reader or listener would draw. The inferred meaning cannot be extended beyond the ordinary and common acceptation of the words used. (See Webb v. Virginian-Pilot Media Companies).

A common scenario involving defamation by implication is where a statement doesn’t actually contain defamatory factual allegations but is communicated in such a way as to suggest to the reasonable listener or reader that the speaker knows certain undisclosed facts, unknown to the audience, which support the statement expressed and which are detrimental to the reputation of the person about whom the statement is made. If a reasonable listener would infer the existence of such facts, and those factual inferences are false, there may be a claim for defamation by implication.

Determining whether an implied statement is capable of supporting a defamation claim can be tricky.┬áIn Louisa County Circuit Court, Judge Sanner was recently called upon to analyze the following statement: “I personally did not inspect the retaining wall but I relied on Allen Roger’s description of the wall’s construction when I prepared the letter.” To readers not familiar with the circumstances of the case, or the context in which the statement was made, the statement does not appear to convey a defamatory meaning. Judge Sanner, however, applying the defamation by implication rules, found that the statement was capable of supporting a defamation action and allowed the claim to go forward.

Examining the context of the alleged statement, the court found that the statement “can be understood as alleging that Sulzen is contending that the plaintiff who constructed the wall and who would be familiar with its construction, knowingly misrepresented the nature of the faulty construction, inferentially for purposes of passing any inspection conducted by Sulzen.” Thus, while the alleged statement may have been literally true, the court found that it could nevertheless reasonably be understood to convey a false and defamatory implication, harming the plaintiff’s reputation.

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