To successfully maintain an action for libel or slander, a plaintiff’s complaint must allege facts that support each element of the tort. Failure to plead the required elements will lead to an early dismissal, and failure to prove the required elements at trial will result in losing the case. Trying to figure out exactly what those elements are, however, has never been easy in Virginia. Supposedly, the test for a valid defamation claim includes only three elements: (1) publication of (2) an actionable statement with (3) the requisite intent. The problem with applying this seemingly simply test is that element (2) is so complicated that it should really be broken down into several elements of its own. I attempted to do that with this blog post I wrote back in 2013, and I encouraged the Virginia Supreme Court to adopt a more useful seven-element test for defamation the last time I appeared before it, but my suggestion has not caught on with the justices. On June 4, 2015, the court decided Schaecher v. Bouffault, the new definitive case outlining the elements of defamation in Virginia.
Although the court still enumerates only three elements, we now have additional guidance on what it means to allege and prove an “actionable statement.” The two big takeaways from the case are (1) Virginia now follows Fourth Circuit precedent on the definition and scope of defamatory “sting”, and (2) it can be defamatory to call someone a “liar,” but whether such a statement will be actionable will depend on the circumstances surrounding the statement and the context in which it was made, as those considerations will govern whether the statement would be interpreted as a statement of fact (actionable) or opinion (not actionable). The gravity of the lie itself will also be relevant to the determination, as the lie must cause reputation to be adversely affected to a sufficient magnitude before it will be deemed defamatory.
Here’s what happened, according to the complaint. The plaintiff is Gina L. Schaecher, an associate attorney at the law firm of Rees Broome in Tysons Corner, Virginia, and the owner of 3 Dog Farm, LC, a company that provides rehabilitation services to displaced companion canines. Her development company applied for a special use permit in Clarke County to operate a boarding kennel of more than five dogs, but her application met with resistance from Robina R. Bouffault, a nearby neighbor and member of the Clarke County Planning Commission. Bouffault allegedly sent out a number of defamatory emails to her colleagues on the Planning Commission and to the Winchester Star, attacking Schaecher’s credibility and integrity. The emails included the following statements, among others: “It would appear that Mrs. Schaecher was not totally truthful,” and “I firmly believe that Gina is lying and manipulating facts.”
The trial court granted Bouffault’s demurrer and dismissed the case, finding that the statements at issue were not defamatory. The Virginia Supreme Court affirmed, holding that although it can be defamatory to call someone a liar under some circumstances, this was not such a case.
After reaffirming that defamation involves the (1) publication of (2) an actionable statement with (3) the requisite intent, the court devoted three and a half pages to an explanation of what an “actionable statement” is. Anyone who needs to know the elements of defamation should really read the opinion itself, but here are the two major highlights:
The Statement Must Be Defamatory In Nature
A cause of action will not arise out of every offensive or unpleasant statement. To rise to the level of actionable defamation, the statement must carry a sufficient degree of “sting”. How badly does the statement need to sting? Until this case was decided last week, the only direct guidance we had in Virginia was the 1904 case of Moss v. Harwood, in which the court held 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.” While this remains the law, we now have this additional (and more helpful, in my opinion) language, borrowed from the Restatement (Second) of Torts: defamatory words are those “tend[ing] 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.” Fourth Circuit cases applying Virginia law have been using this test for many years, but this marks the first time the Virginia Supreme Court has officially adopted it.
False accusations calling someone a liar (or, as the Virginia Supreme Court referred to such statements, “libelous aspersions impugning honesty”) are potentially defamatory. “As with all evaluations of defamatory statements,” the court explained, “context is of the utmost importance.” In Schaecher’s case, the court found the statement about not being “totally truthful” to carry insufficient sting. The statement “I firmly believe that Gina is lying and manipulating facts,” on the other hand, was deemed “sufficiently damaging to one’s reputation so as to deter others from associating with her and render her contemptible in the estimation of the community.” However, this did not end the inquiry, as the context of the statement indicated that it was properly interpreted as a mere opinion and not fact.
The Statement Must Convey An Express or Implied Assertion of Fact
For a statement to be actionable, it must have a provably false factual connotation and thus be capable of being proven true or false. Statements which cannot reasonably be interpreted as stating actual facts about a person cannot form the basis of a defamation action. The “Gina is lying” statement was part of a larger email and couched in language that implied underlying facts. Therefore, it was necessary for the court to examine the entire email (see page 25 of the opinion) to determine whether, considering the context and the audience, it could reasonably be interpreted as implying defamatory facts. The court found that in this case, it was not defamatory to accuse Ms. Schaecher of “lying” because the language of the email indicated that the characterization was based entirely on Bouffault’s personal interpretation of a discrepancy in Ms. Schaecher’s prior representations, which discrepancy was not denied by Ms. Schaecher, and which could just as easily be explained by mistake, miscommunication, or a change in circumstances. Thus, the court found that the recipients of the email would have reasonably perceived the accusation as a pure opinion based upon her subjective understanding of the underlying scenario. There was nothing in the email to suggest its accusations were based on any implied, undisclosed facts.
By affirming the dismissal of Ms. Schaecher’s defamation claim, the court essentially held that the alleged statements, read in context, either did not carry the requisite degree of sting to support a defamation claim, or did not convey false assertions of factual information. Any Virginia lawyers seeking to get a defamation case thrown out on demurrer should begin with a citation to Schaecher v. Bouffault.