The Small-Group Exception to the “Of and Concerning” Test

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.

The Eastern District of Virginia recently had an opportunity to grapple with the small-group exception in the case of Quill Ink Books, Ltd. v. Rachelle Soto. It pointed out that the small-group theory is not really an exception to the of-and-concerning requirement, as the ultimate question is whether the words at issue, fairly construed, point to the plaintiff. If the plaintiff is not singled out in a statement referring to an organization or other group, the of-and-concerning test is simply more likely to be satisfied if the targeted group is a small one.

The case involves a dispute between two romance novel authors, Rachelle Soto (a.k.a. Addison Cain) and the pseudonymous Zoey Ellis. According to the complaint, Cain sent out a large number of DMCA take-down notices falsely accusing Ellis of plagiarizing Cain’s novels. She then went on social media and made various statements claiming that Ellis had “infringed on my copyright” and that what Ellis had written in one of her books amounted to “theft” of Cain’s work. Quill Ink Books, the publisher of Zoey Ellis novels, sued for defamation, DMCA misrepresentation, and other claims. It argued that although Quill was not mentioned by name in any of small-group-300x200the allegedly defamatory statements, it was a proper plaintiff under the small-group theory.

The court ruled that Quill Ink had it backwards. The small-group theory applies (or potentially applies) when a defamatory statement attacks a small group and a member of that group wishes to sue for defamation. Here, the statements were directed at Zoey Ellis herself, not a group. Quill had admitted in its argument that the statements at issue were directed at the author, not the publisher, and argued that the author was “a group of one.” The court held that by admitting that it was not a member of the defamed group, Quill could not maintain a defamation action as the statement (by its own admission) was not “of and concerning” Quill. As the court explained, “Here, the statements at issue defame an individual, Zoey Ellis, or potentially her work of authorship. No group was defamed, so Quill is not a member of any such group, and Quill did not author Zoey Ellis’ books. … Even those who knew or knew of Quill could not reasonably believe an accusation against an author who Quill happens to have a relationship with is also an accusation against Quill.”

As the statements described in the complaint were not of and concerning Quill Ink, and because the small-group exception did not apply, the court dismissed the defamation claim with prejudice.

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