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:
(1) “Samir Farajallah has done little or nothing to assist [the crew members] or anyone else”
Had the article asserted that Farajallah had done nothing to assist the crew members, that would have been a statement of fact susceptible to being proven true or false. However, the sentence says “little or nothing,” which changes the nature of the statement to one of opinion. As phrased, the statement is not actionable because “whether a person has done little to assist, or sufficiently assisted, his or her employees is completely subjective and not verifiable.”
(2) “Samir … appears to be on the edge of abandoning his detained employees to the tender hands of the India prosecutors”
This statement is subjective, and therefore not demonstrably false. Not actionable.
(3) “Samir has paid few wages…. Still other sources say that vendors are owed substantial sums by Farajallah et fil. These debts include legal fees, supplies, officer and staff pay….”
Unlike the first two statements, this one contains an objectively verifiable statement of fact: the plaintiffs either owed money to vendors or they didn’t. Whether these alleged debts included legal fees or staff pay is also a matter of fact that can be proven or disproven. The court found the statement actionable not only as defamation but defamation per se: “if the statement is proven false, it constitutes defamation per se because it disparages Plaintiffs’ fitness to perform their professional duties and accordingly prejudices them in their trade.”
(4) “because he believed to [sic] could sway the Indian government with hand-wringing and cheap press releases, rather than hiring counsel timely from a reputable firm to deal with the matters he faced”
The court found this statement to be a “close call” but decided it was actionable because the second half of the statement is potentially capable of being proven false. Although “timely” is subjective, if counsel had been hired the same day the need for counsel was learned, reasonable minds could not differ in concluding that counsel was retained in timely fashion.
(5) “[AdvanFort] has been accused by the Indian government of arms running”
This was probably the easiest call for the court to make. The statement is one of fact and therefore actionable. Moreover, because the statement implies illegal weapons trafficking or smuggling, the statement is actionable as defamation per se.
(6) “it seems a 1200-page charge sheet has been filed by the Indian government against AdvanFort and anyone connected with it including Mr. Farajallah and plucky Amad [sic].”
The court also found this statement to be independently verifiable and therefore actionable.
The court rejected Cartner’s argument that the article as a whole amounted to mere rhetorical hyperbole. None of the statements, the court held, “are so outlandish as to rise to the level of incredible, hyperbolic rhetoric.”
Finally, the court held that the plaintiffs were limited purpose public figures, but allowed the actionable claims to go forward because malice was sufficiently alleged in the complaint. Specifically, the court found that the allegations were sufficient for the court to reasonably infer that Cartner “was aware of the probable falsity of his statements.”