The Virginia Defamation Law Blog

April 13, 2015

A Brief History of Virginia’s Anti-SLAPP Statute

The First Amendment guarantees, among other freedoms, “the right of the people…to petition the Government for a redress of grievances.” This right to petition is part of the First Amendment‘s free-speech protection, as it pertains to a particular form of freedom of expression. A lawsuit aimed at deterring or punishing citizens from exercising this First Amendment right, or from otherwise exercising their right to freely express their political views or engage in discourse on a matter of public concern, is known as a “SLAPP” suit. (SLAPP stands for “Strategic Lawsuit Against Public Participation”). SLAPP suits usually don’t advertise the fact that they seek to chill the expression of ideas; they are often disguised as legitimate lawsuits for defamation or some other tort.

A majority of states have passed anti-SLAPP laws designed to facilitate the identification and early dismissal of frivolous SLAPP suits. Virginia is not one of those states. Until recently, Virginia had no anti-SLAPP law to speak of and gained a reputation among plaintiff’s lawyers as a welcoming jurisdiction friendly to questionable defamation suits. A movement is underway to fix that. A flurry of defamation lawsuits filed in Virginia by California congressman Devin Nunes inspired the introduction of House Bill 759, designed to bring Virginia’s anti-SLAPP law more in line with California’s more robust First Amendment protection. California’s anti-SLAPP law allows a defendant to make a “special” motion to dismiss if he or she can show the plaintiff’s claim arises from a statement made in connection with a public issue in furtherance of the right to free speech. If the court grants one of these special motions to strike, the anti-SLAPP statute requires the unsuccessful plaintiff to pay the defendant’s attorneys’ fees. (Attorneys’ fees are normally not recoverable in defamation actions, so this can be a powerful deterrent against meritless lawsuits.)

As of this writing, Virginia still has not enacted a traditional anti-SLAPP statute. But the law has evolved over the past 10-15 years and the trend is towards increased protection for free-speech rights. Here’s how Virginia’s anti-SLAPP protection has evolved over the years:
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March 16, 2015

Make the Online Harassment Stop

by Lee E. Berlik

Libel and slander are considered “torts.” The law of torts is designed to provide a remedy that will “make the plaintiff whole” to the fullest extent possible. Usually, we’re talking about money: how much money would it take to fully compensate the plaintiff for the harm caused caused to the person’s reputation by the defamation? What is the value of the reputation and what amount would fairly compensate the plaintiff for his or her emotional anguish? Often, however, plaintiffs are less interested in money than in halting or removing the damaging statements (especially if they were published online and continue to reach readers), or forcing the defendant to make a public retraction. This latter form of relief–asking the court to order someone to refrain from making certain statements or to perform an affirmative act–is considered “equitable” in nature, basically meaning that it will be guided by vague principles of fairness. A court order granting this relief is called an injunction. It’s almost impossible to get.

One might think that if the purpose of tort law is to provide plaintiffs with a complete remedy for the harm, an injunction would be a logical choice because it has the capacity to prevent harm from happening in the first place. Moreover, many affected by online defamation take the position that no amount of money can truly restore a damaged reputation or bring an end to the emotional distress caused thereby. But that’s not how the legal system works. Virginia law (like the law in most states) has a strong preference for money damages over injunctive relief. If the court finds that an award of money will fully compensate the plaintiff, it will not issue an injunction as a general rule. This means that unfortunately, there is often a huge disconnect between what victims of online defamation want and what the court is willing to give them.
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February 2, 2015

Statements Truthful When Made Won’t Become Defamatory Later

by Lee E. Berlik

The Internet is full of factual assertions that were true at the time they were first published, but no longer are. Can future events modify the factual and legal landscape in such a way as to create defamation liability where there initially was none?

Earlier I wrote about the case of Lorraine Martin v. Hearst Corporation. Lorraine Martin brought a defamation action against several news outlets which had published accounts of her arrest for drug-related charges. It’s not that she wasn’t arrested; her complaint was that the charges were dropped in 2012 and that the publications refused to remove the original articles, which were still available online and causing harm to her reputation. The statements had become false over time, she argued, because Connecticut has an “erasure statute” which provides that after a certain amount of time after the dismissal of a criminal charge, the charge is deemed “erased” and the person’s arrest record is wiped clean. The District of Connecticut rejected this argument, finding nothing in the statute to suggest that the legislature had intended to impose any requirements on anyone outside of courts or law enforcement. On January 28, 2015, the Second Circuit affirmed the dismissal of her claims.

On August 26, 2010, the Connecticut Post, Stamford Advocate, and Greenwich Time, all published articles online stating that Martin had been arrested and charged with numerous drug violations after police received information that a pair of brothers was selling marijuana in town. News 12 Interactive, LLC, published an Internet article reporting that Martin was arrested “after police say they confiscated 12 grams of marijuana, scales and traces of cocaine from [her] house.” Martin conceded that these statements were all true at the time they were originally published. (Note: even before reading the court’s analysis, it should be apparent to most of you that when a plaintiff admits her defamation action is based on a true statement, there are going to be problems.)

January 19, 2015

The Statute of Limitations for Defamation Actions

by Lee E. Berlik

Under the current statute, suits in Virginia for libel, slander, or “insulting words” can only be brought within one year from the time of publication. Earlier this month, delegate Dave Albo filed House Bill No. 1635, proposing that the Commonwealth increase the limitations period to two years, and providing further that in cases involving Internet defamation by anonymous tortfeasors, the statute of limitations be suspended (or “tolled”) upon a motion and showing of good cause. If the bill passes, it will make it a lot easier to identify and bring to justice those persons who use the Internet to conceal their identities while unleashing a barrage of false and harmful statements about another individual or business.

Statutes of limitation have been debated for hundreds of years. In a law review article written over 100 years ago, Oliver Wendell Holmes, Jr. asked, “what is the justification for depriving a man of his rights, a pure evil as far as it goes, in consequence of the lapse of time?” In other words, why have statutes of limitation at all? Shouldn’t every wrong have a remedy? There are some who feel that claims should be resolved on their merits regardless of when they are brought, whereas others argue that untimely claims should be forever extinguished. Most states have reached a consensus that defamation claims should be limited to one or two years, primarily due to concerns about First Amendment principles and a desire to avoid the chilling of free speech.
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December 13, 2014

Is it Slander to Call Someone a Liar?

by Lee E. Berlik

California lawyer Tamara Green has accused Bill Cosby of sexual assault. Bill Cosby, speaking through his publicist, characterized the accusation as “discredited” and as amounting to “nothing.” First question: is Cosby calling Green a liar? Second question: is it defamatory to call someone a liar if they’re actually telling the truth? Third question: is a celebrity personally liable for defamatory statements made by that person’s attorney or publicist? Ms. Green believes the answers to all three questions are YES, judging by the fact that she sued Mr. Cosby for defamation a few days ago in Massachusetts federal court. Personally, I’m not so sure.

Let’s begin at the beginning: what did Cosby actually say? In defamation actions, it is important to know the exact words used, lest liability be based on embellishments or mischaracterizations of those words by the plaintiff’s attorney. First of all, it wasn’t Cosby himself who responded to Ms. Green’s allegations. Her lawsuit is based on statements made by his attorney and publicist. Back in 2005, when Ms. Green first went public with her accusations in an appearance on the Today Show (video below), Mr. Cosby’s lawyer at the time, Walter M. Phillips, Jr., allegedly issued a statement calling the accusations “absolutely false” and saying that the alleged assault “did not happen in any way, shape, or form.”

Years later, in a Newsweek interview published in February 2014, Cosby’s publicist (claimed to be David Brokaw) gave Newsweek this statement: “This is a 10-year-old, discredited accusation that proved to be nothing at the time, and is still nothing.” As if to demonstrate the reason we have a requirement here in Virginia to plead the actual words used, Ms. Green does not include this quotation in her complaint. Instead, she characterizes the statement as follows: “in an effort to continue the public branding of Plaintiff as a liar, Defendant Cosby through Brokaw stated explicitly, stated in effect, stated by innuendo, implied, and/or insinuated, that Defendant Cosby’s drugging and sexual assault against Plaintiff Green never occurred, and therefore that Plaintiff Green lied and was a liar.”
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November 24, 2014

Paul Brodeur’s Lawsuit Against Columbia Pictures

by Lee E. Berlik

So you may have heard that environmental scientist Paul Brodeur is seeking $1 million in damages for libel, defamation, slander and false light against the movie studios behind 2013’s highly acclaimed film American Hustle. Why? Because according to him, the movie damaged his reputation by “attributing…a scientifically unsupportable statement” to him. Had this action been filed in Virginia rather than California, it would not likely go very far.

Here’s the scene: it’s the late 1970s or early 1980s, and the two characters played by Christian Bale and Jennifer Lawrence are arguing about the new microwave oven that just exploded in their kitchen:

Irving Rosenfeld: I told you not to put metal in the science oven! What did you do that for?

November 7, 2014

No Intra-Corporate Immunity Against Defamation Claims

by Lee E. Berlik

Workplace defamation actions face a number of obstacles. The one that probably comes up the most is the issue of qualified privilege. Employees often claim that a manager or supervisor defamed them in the course of a termination or negative performance evaluation. These statements are usually protected from defamation claims, as a limited privilege applies to communications made on any subject matter in which the person communicating has an interest, or with reference to which he has a duty, if made to another person having a corresponding interest or duty. In other words, in situations where it is necessary or expected that one employee will make statements concerning the performance of another (such as a performance evaluation), a qualified privilege will apply.

Another defense that is sometimes raised in the employment context is that of “intra-corporate immunity.” This is a defense borrowed from the law of conspiracy. Because a conspiracy, by definition, requires at least two legally distinct persons, and because two employees acting within the scope of their employment duties are both acting as agents of their employer, a conspiracy cannot be formed between those two employees due to the unity of interest and absence of a second entity. “A corporation cannot conspire with itself,” is the oft-used way of describing the reasoning behind the doctrine.
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October 22, 2014

The Benefits of Apologizing for Libel or Slander

by Lee E. Berlik

Suppose you’ve spoken your mind about someone you don’t like and have been accused of defamation. Should you apologize? If you intentionally defamed the character of another person out of ill will or spite, you’re probably not going to want to apologize. But if you’ve either had a change of heart or a sudden realization that you’re about to get sued, there are some good reasons to say you’re sorry.

For one thing, apologizing–if done right–can mitigate the plaintiff’s damages. Plaintiffs who sue for libel or slander in Virginia aren’t just limited to recovery of out-of-pocket pecuniary losses; they can also recover damages for pure emotional distress. Even without proof of actual reputational harm, Virginia courts have allowed plaintiffs to recover compensation for mental anguish, embarrassment, and humiliation. In essence, the worse the plaintiff feels, the higher the potential for a large damages award. In the business world, studies of disgruntled customers have shown that they are more than twice as likely to forgive a company that performs poorly but then apologizes than one that offers payment in lieu of an apology. It stands to reason, then, that a plaintiff’s emotional distress will likely be diminished if you make a sincere, timely apology, and publish that apology to the same group to whom you made the defamatory remarks.
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September 15, 2014

Fresenius Medical Care Sued for Allegedly Defamatory Statements of Employee

by Lee E. Berlik

As a business owner, you can’t control everything your employees will do or say. What if one of them defames the character of another employee while on the job? Can the business be held responsible? If the employee uttered the defamatory words while performing the employer’s business and acting within the scope of his or her employment, then yes, the employer can be held liable for defamation. How does one determine whether an employee’s statements were made with the “scope of employment”? In Virginia, an act will be considered within the scope of employment if it was (1) expressly or impliedly directed by the employer, or is naturally incident to the business, and (2) performed with the intent to further the employer’s interest, or from some impulse or emotion that was the natural consequence of an attempt to do the employer’s business, and did not arise wholly from some external, independent, and personal motive on the part of the employee to do the act upon his own account. (See Kensington Assocs. v. West, 234 Va. 430, 432 (1987)). If a plaintiff alleges the existence of an employment relationship, it becomes the employer’s burden to prove that the statement was not made within the scope of employment. Absent such proof, the employer is on the hook.

Last week, a defamation case against Bio-Medical Applications of Virginia, Inc. (doing business as Fresenius Medical Care Dominion) was allowed to go forward. The Amended Complaint filed in the case alleges that a Fresenius employee emailed to coworkers various false statements suggesting that the plaintiff (a registered nurse) had a complete disregard for patient welfare. For example, the alleged emails attributed to the plaintiff statements such as “[the patient] just needs a little bleach in his lines” and, in reference to another patient, “all she needs is a good shot of air. That’ll take care of her.” Another email accused the plaintiff of saying, “Well isn’t it about time?” after another patient had died. Fresenius Medical Care filed a motion to dismiss the case, arguing that the complaint failed to plead sufficient facts to hold the employer liable for the statements of its employees, and that the elements of defamation had not been satisfied. The court disagreed on both counts and denied the motion.
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August 29, 2014

One Yelp Review = One Publication

by Lee E. Berlik

Once upon a time, each separate copy of a defamatory statement was considered a separate publication, giving rise to a separate cause of action for defamation. Back then, if a defamatory article was published in a newspaper and the newspaper printed a million copies, the plaintiff could argue successfully that he had been defamed a million times. That is no longer the law, at least not in Virginia. Take Yelp reviews. If a new cause of action was created each time a consumer clicked a link leading to a defamatory review, the one-year statute of limitations would potentially never expire. Such a rule would likely allow plaintiffs to endlessly harass defendants by filing a new lawsuit with each new click. For reasons like these, Virginia follows the “single publication rule,” which treats an online post as a single publication despite the fact that it may be read over and over again by different people all over the world. The number of views may be relevant to assessing the plaintiff’s damages, but does not re-start the running of the statute of limitations or create new causes of action.

A Virginia law firm learned this lesson recently in Westlake Legal Group v. Yelp and Christopher Schumacher. Mr. Schumacher hired Westlake attorney Thomas K. Plofchan, Jr., back in 2009 and, according to his Yelp review, was not pleased with the representation he received. His review, posted on July 7, 2009, accused Westlake of “blatant incompetence and lying” and of having “a history of messing up cases.” Westlake sued for defamation, not only against Mr. Schumacher, but against Yelp itself. The firm did not file the lawsuit, however, until May 11, 2012, well after the one-year limitations period had expired.
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