Whether a particular tort is deemed intentional, as opposed to merely negligent, can have far-reaching implications. Intentional torts and negligent torts are treated very differently when it comes to things like insurance coverage, sovereign immunity, and recoverable damages. Defamation is one of those torts that cannot be easily categorized, as the degree of intent required to hold someone liable for defamation differs depending on the circumstances. If the plaintiff is a public figure, he will have to prove the defendant intentionally made a false statement, or at least made the statement with a high degree of awareness of its probably falsity. Private-figure plaintiffs, on the other hand, need only demonstrate a level of culpability akin to negligence, a standard that does not require a showing of intent. States differ in their treatment of defamation-by-implication cases, but in Virginia, the speaker must have intended to make a defamatory implication to be held liable.
Some would argue that defamation by implication should only be deemed an intentional tort in those cases where malice is required. Most court opinions involving claims of implied defamation focus solely on whether the statement implies a defamatory meaning to the reasonable listener or reader, without regard to the defendant’s subjective intent in making the statement. According to Section 563 of the Restatement (Second) of Torts, “the meaning of a communication is that which the recipient correctly, or mistakenly but reasonably, understands that it was intended to express.” If the requisite level of intent for defamation liability is mere negligence (the usual standard in cases not involving public figures or officials), it might make sense to hold the speaker liable for a reasonable defamatory inference even if that inference was not the intended meaning. Since the Virginia Supreme Court decided Pendleton v. Newsome, however, it has been clear that plaintiffs seeking to hold defendants liable based on a defamatory implication must demonstrate not only a defamatory inference but that the defendant intended to communicate that inference.
Pendleton v. Newsome was an implied-defamation case brought by a private-figure plaintiff, so no showing of malice was required. Still, the court held that the plaintiff “must allege and ultimately prove that the defendant intended his words to express a defamatory innuendo, that the words actually did so, and that the plaintiff was actually defamed thereby.” (See Pendleton v. Newsome, 290 Va. 162, 174 (2015)). The court held that while the speaker must have intended to express defamatory innuendo, this fact need not be apparent from the words of the statement: “Nor have we held that the defendant’s words must, by themselves, suggest that the author intends or endorses the allegedly defamatory inference. Such a holding would immunize one who intentionally defames another by a careful choice of words to ensure that they state no falsehoods if read out of context but convey a defamatory innuendo in the circumstances in which they were uttered.” (Id.) Thus, to prevail in a defamation-by-implication case, a plaintiff must prove:
- that the defendant made the statements alleged in the complaint,
- that the statements, even if facially true, were designed and intended by the defendant to imply a defamatory meaning,
- 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
- that the plaintiff suffered harm as a result.
(Id. at 175).
Let’s take another look at Spirito v. Peninsula Airport Commission, discussed earlier on this blog. Ken Spirito, an airport-management professional and former Executive Director of the Peninsula Airport Commission, found himself the subject of rumors that he had been improperly shredding documentary evidence relevant to an investigation into a failed loan. After the Daily Press and other defendants were dismissed from the litigation, the case continued against the Peninsula Airport Commission. Spirito took issue with certain statements made by PAC employees that–according to him–implied he was improperly shredding documents in an effort to destroy evidence that was the subject of a VDOT investigation. For example, there was this text exchange between PAC employee Lisa Ortiz and her supervisor, Renee Ford:
Ortiz: Wow Ken is shredding shredding shredding.
Ortiz: Seems kinda weird
Ford: This is getting out of hand!
Were these statements true? Sure, Ken was shredding documents. Was his shredding weird? Well, that’s a matter of opinion, and defamation claims cannot be based on statements of pure opinion. So does that mean the PAC was entitled to summary judgment? The court said no, and the reason has to do with the fact that this was a case of alleged implied defamation, where things aren’t always what they seem.
According to Spirito, he frequently shredded documents as a matter of routine business practice, so there was nothing noteworthy or suspicious about his shredding documents during the VDOT investigation. The exchange above, he claimed, along with its republication to others, implied that his shredding was illegal or improper, and therefore defamatory.
In defamation by implication cases, a plaintiff does not need to prove the literal statements at issue are false. The statements may be facially true, but if they were designed and intended by the speaker to imply a defamatory meaning, and if that defamatory meaning is how the statements were understood by others, liability may arise.
In this particular case, a malice standard applied because Spirito was deemed a limited-purpose public figure. Applying that standard, the court held that Spirito “must show that the publishers implied his shredding was illegal or improper while entertaining serious doubts about the truth of that implication.” In other words, it’s not enough if the listener may have inferred a defamatory meaning from facially truthful words; the speaker must have intended to imply that meaning.
Here, the court found that Spirito had shown sufficient evidence of actual malice to survive summary judgment. Ortiz and Ford had testified that they and other PAC employees had shredded documents themselves during the audit, and there was no formal document hold in place. It was quite conceivable, the court found, that Spirito’s use of the shredder was an ordinary office occurrence. It would therefore be up to a jury to decide whether PAC employees intentionally defamed Spirito by commenting on his shredding activity in a manner that suggested improper conduct while knowing that there was nothing at all remarkable about his office behavior.
Note, however, that just because intent must be shown to recover for implied defamation doesn’t automatically mean loss of insurance coverage or entitlement to punitive damages. The intent we’re talking about here is the intent to convey a defamatory meaning, which is just one of the several elements necessary to recover in a defamation action. There’s still the matter of intent with respect to falsity. In private-figure plaintiff cases, negligence is a sufficient level of intent to state a valid claim. Thus, a speaker can intentionally imply to others a defamatory meaning while subjectively believing (mistakenly) that implication to be true. In situations like these, where the speaker does not intend to convey a false message, courts are not likely to treat the claim as an intentional tort.