To be actionable as libel or slander, a statement must not only be false, but must also be defamatory in nature. To have defamatory meaning, a statement must carry a sufficient degree of “sting”; merely offensive or unpleasant statements are not defamatory. See Chapin v. Knight-Ridder, Inc., 993 F.2d 1087, 1092 (4th Cir. 1993) (noting that falsity of statement and defamatory sting must coincide). A communication that is merely unflattering, annoying, irksome, or embarrassing, or that hurts the plaintiff’s feelings, without more, is not actionable in Virginia. See R. Sack, Libel, Slander and Related Problems 45 (1980). So how much of a sting is enough to state a claim?
While the Virginia Supreme Court has not spoken recently on the requisite degree of “sting” required to support a defamation action, federal courts applying Virginia law have held that a statement may be actionable only if it contains a false assertion of fact that “tends so to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him.” See Wolf v. Fed. Nat. Mortg. Ass’n, 830 F. Supp. 2d 153, 168 (W.D. Va. 2011). This is also the position taken by the Virginia Model Jury Instructions and the Restatement (Second) of Torts. See Va. Model Jury Instr. 37.010; Restatement (Second) Torts § 559 (1977). (Update: On June 4, 2015, the Virginia Supreme Court decided Schaecher v. Bouffault, in which it formally adopted the Restatement test that has been followed in the Fourth Circuit for several years.)
The most recent pronouncement by Virginia’s highest court on the issue appears to be the 1904 case of Moss v. Harwood, in which the court held that to be actionable as defamation, the words must be such that would tend “to injure one’s reputation in the common estimation of mankind, to throw contumely, shame, or disgrace” upon the plaintiff, or which would tend “to hold him up to scorn, ridicule, or contempt, or which [are] calculated to render him infamous, odious, or ridiculous.” Moss v. Harwood, 102 Va. 386, 46 S.E. 385, 387 (1904).
When analyzing a particular statement to determine whether it might be sufficient to state a cause of action for defamation, ask yourself these questions: Is the statement the type of statement that would have a tendency to harm reputation? Would reasonable people hearing the statement be deterred from associating or dealing with the subject of the statement if they believed it to be true? Does the statement pertain to the subject’s honesty, integrity, or virtue, or is it a mere insult? The answers to these questions may not be clear. If necessary, I can help you. What is clear is that only those statements with a sufficient degree of sting will be deemed actionable in Virginia.