If a defendant claims he defamed the plaintiff only because he was “following orders,” acting at the instruction of his boss or other principal, and the evidence supports this, can a defamation claim be brought against the person who gave the order? In a word, yes. If a principal instructs his agent to make a public statement and that statement defames the reputation of another person or entity in a manner that would be actionable under Virginia law, the defamed party’s remedy is not limited to a lawsuit against the individual speaker; he may also pursue a claim against whoever is ultimately responsible the statement having been made.
Vicarious liability principles apply to defamation actions just as they do in tort law generally: the principal is normally liable for the tortious conduct of his agent. (See Mann v. Heckler & Koch Def., Inc., No. 1:08cv611 (JCC), 2008 WL 4551104 at *8 (E.D. Va. Oct. 7, 2008) (denying motion to dismiss defamation claim on basis that employer could be vicariously liable for employee’s defamatory statement); Fuste v. Riverside Healthcare Ass’n, Inc., 265 Va. 127, 134 (2003) (recognizing that defamation liability may be founded upon statements made by an authorized agent)). Corporations, for example, can only act through the conduct of their employees. If an employee commits libel or slander in the course of performing his or her duties for the employer, the employer itself can be held liable for defamation.
Agency is defined in Virginia as “a fiduciary relationship resulting from one person’s manifestation of consent to another person that the other shall act on his behalf and subject to his control, and the other person’s manifestation of consent so to act.” (See Acordia of Virginia Ins. Agency, Inc. v. Genito Glenn, L.P., 263 Va. 377, 384 (2002)). In examining whether an agency relationship exists, the most important consideration is the degree to which one party has the ability to control the actions of another. “In any master-servant analysis, be it in the area of tort liability, worker’s compensation, or unemployment compensation, the power of control is the determining factor in ascertaining the parties’ status.” Virginia Employment Comm’n v. A.I.M. Corp., 225 Va. 338, 347 (1983). “The potential power of control, not the actual exercise of control, is the important element.” Id.
While vicarious liability situations most often arise in the context of employer-employee relationships, they can arise in other situations as well. A parent, for example, could be deemed to have the power to control a child such that an agency relationship would be formed. In Thomas v. Wingold, 206 Va. 967, 973 (1966), the Supreme Court of Virginia affirmed a jury verdict against a mother based on a finding that she was vicariously liable for the negligent act of her son. The court held that an agency relationship was established because the son’s conduct occurred in the course of following his mother’s instructions. And the more recent case of Drake v. Livesay, 231 Va. 117 (1986) clarified that agency relationships don’t need to be in writing; rather, they may be inferred from the conduct of the parties and from the surrounding facts and circumstances.
It may not even be necessary to establish an agency relationship to impose liability on the person who caused someone else to make a defamatory statement. According to Comment (f) of the Restatement (Second) Torts § 577, “One is liable for the publication of defamation by a third person whom as his servant, agent or otherwise he directs or procures to publish defamatory matter.” (Emphasis mine). A situation like this might arise if a competitor to a business asks a friend to post a negative, defamatory review on the competing business’ Yelp page, hoping to stay anonymous and escape liability himself. If caught, he won’t be able to mount a successful defense by simply arguing that it was someone else who posted the review.
A person cannot do indirectly what he is prohibited by law from doing directly. Thus, someone who defames another person indirectly, by asking someone else to do the dirty work on his behalf, will likely be liable for defamation to the same degree as if he had uttered the words himself.