The Virginia Defamation Law Blog
To be actionable in Virginia, defamatory statements must be about the person who is filing the lawsuit. A plaintiff can’t successfully bring a defamation action based on a false statement that doesn’t expressly or impliedly refer to him or her, and in a manner clear enough to communicate that reference to others. This is the “of and concerning” element that every action for libel or slander requires. When the false statement at issue concerns a group of people rather than an individual, a question arises as to whether the group’s members have been defamed. The general rule is that statements that broadly malign an organization as a whole do not necessarily defame the organization’s individual members. However, when the organization is small enough, the small-group theory postulates that a defamatory statement about the small group could be reasonably expected to harm the reputations of every individual member, whether or not they are identified in the statement, and that such statements should be treated as “of and concerning” each individual group member.
If a statement’s “language…is directed towards a comparatively small or restricted group of persons, then any member thereof may sue.” (See Ewell v. Boutwell, 138 Va. 402, 410 (1924)). How small does the group have to be to qualify for the small-group exception to the of-and-concerning requirement? That’s anyone’s guess. Courts around the country typically apply the doctrine to groups of up to around 25-50 members, but each case is going to be different. Courts will look to factors such as the size of the group, whether the statement attacks the group as a whole or some subset thereof, and whether the group is prominent in the community in which the statement was published. The key issue is whether a reasonable person hearing the defamatory statement about the group would likely interpret it as referring to all its individual members.