For a statement to be actionable as defamation per quod, it must have resulted in damages to the plaintiff. (See Landmark Communications, Inc. v. Macione, 230 Va. 137 (1985)). In actions for libel and slander in Virginia, a plaintiff must prove the quantum of his damages unless the words at issue are considered defamatory per se. To qualify as defamation per se, the words claimed to be defamatory must fall into one of these four categories:
- Those which impute to a person the commission of some criminal offense involving moral turpitude, for which the party, if the charge is true, may be indicted and punished;
- Those which impute that a person is infected with some contagious disease, where if the charge is true, it would exclude the party from society;
- Those which impute to a person unfitness to perform the duties of an office or employment of profit, or want of integrity in the discharge of the duties of such an office or employment; or
- Those which prejudice such person in his or her profession or trade.
Defamation plaintiffs usually try to shoehorn their claims into the defamation per se variety as it makes their burden of proof much easier to meet. Proving harm to reputation is notoriously difficult, so the plaintiff’s job becomes a lot easier when harm to reputation is presumed as a matter of law. The latest court opinion to land on my desk involved an attempt to classify a statement implying dishonesty as defamatory per se. In this particular case, the plaintiff was successful.
Ira D. Socol v. Albemarle County School Board involves a claim by Ira Socol, the former Chief Technology and Information Officer for a division of Albemarle County Public Schools, against the school board and Matthew Haas, the school system’s superintendent, for defamation and related claims. Socol had been fired from the school system for allegedly violating the county’s purchasing and procurement policies in the course of purchasing furniture for a new technical high school. According to the allegations in the complaint, shortly after Haas terminated Socol’s employment, Haas told others that Socol had “misused P-Cards deliberately and egregiously” and that he had admitted to doing so. (P-Cards are “purchase cards” that Socol apparently used to purchase school furniture). Believing that this statement was false and that it prejudiced him in his profession, Socol sued for (among other things) defamation per se.
In analyzing the potential applicability of the third and fourth categories of defamation per se (i.e., those pertaining to the tendency of the statement to affect one in his profession or employment), the court began by noting that defamation per se may be implied from the words used; the defamatory meaning need not be expressed in direct terms to be actionable. The court also noted that pure expressions of opinion cannot form the basis of defamation liability.
The defendants moved to dismiss the defamation claim in part because the statement about “deliberately and egregiously” misusing P-Cards was merely a statement of opinion, but the court disagreed, finding that the statement contained a “provably false factual connotation.” Even though the word “egregious” is couched in terms that seem to reflect only an opinion, the court reasoned, it was used in a manner that could reasonably be interpreted to imply an assertion of fact as to Socol’s state of mind or intention.
The court also found that the statement at issue could be fairly characterized (if the allegations of the complaint were proven true) as defamation per se:
Liberally construed, the accusation that Socol deliberately and egregiously misused purchase cards while serving as CTIO implied that Socol was unfit to perform the duties of the position and that he lacked honesty and integrity.
For these reasons, the court denied the motion to dismiss and allowed the defamation claim to proceed.