When relationships go bad, it’s not uncommon for one of the parties to seek to embarrass or harm the other by “exposing” the person for the horrible human being that he or she is. I see this most often in the form of revenge porn, social media bullying campaigns, and in efforts to contact the other person’s spouse or employer to disrupt those relationships and possibly get the other person fired. I’ve written earlier about how the First Amendment may protect informing another’s employer of harmful information if those allegations are completely true, but doing so carries risk. If the employer acts on the information and the employee suffers an adverse employment action, the whistleblower may face liability for defamation and tortious interference, particularly if the employee can convince the court that the statements or their implications are untrue.
Consider the case of Selamawit Teka* v. Jonathan Jack. In August 2021, Teka sued Jack in federal court, complaining that “Jack engaged in a course of unlawful and unauthorized contact with Teka’s employer, wherein he publicized and exposed personal details of Teka’s private life to those she works for without cause, reason or justification. In these communications, Jack publicized and exposed the contents of private social media conversations, and other details of Teka’s personal life, dealings, conversations and activity, to those with no legitimate interest or concern in her private affairs. Jack defamed Teka and violated her right to privacy with the intent to insult, humiliate and embarrass Teka, and get her fired.” The court was not impressed with the invasion-of-privacy claims, but it was persuaded that Teka had alleged a plausible cause of action for defamation and denied Jack’s motion to dismiss that claim.
This opinion was decided under District of Columbia defamation law, but D.C. defamation law is substantially identical to Virginia law in all respects material to the opinion. The basic facts, according to the opinion, go something like this. Teka works for a D.C. government agency. She and Jack were romantically involved with each other for around two months. The relationship soured when Teka asked Jack to “refrain from talking about politics and race” in front of her children. This apparently set him off, leading to a string of inflammatory text messages containing profane insults. At some point, Teka showed up uninvited at Jack’s house to “try to make peace” and “retrieve her personal belongings.” Jack didn’t like that. The next day, she sent him a WhatsApp message containing a bad review written about Jack on AirBnb. “Cease and desist–stop texting me,” he responded.
That evening, Jack decided to complain about Teka’s conduct to her employer. He ripped off an email in which he wrote, “One of your employees, Selamawit Teka, used her DC government procured cell phone to send me harassing messages. I’ve asked her repeatedly to cease and desist, however, she has not. Is this type of behavior deemed acceptable from an employee within your office?” He followed up the next day with another email in which he made reference to the unannounced visit: “On 7/9/21 she drove to my home in Charlottesville, VA, from Hyattsville, MD with zero warning and completely uninvited. She rang my doorbell multiple times, even though I have a ‘NO TRESPASSING’ sign at the beginning of my property. Her vehicle blocked my driveway. I was unable to pick up my Daughter from school on time that day because of this unhinged behavior. … At this point I fear not only my safety but for my Daughter’s safety.”
Teka argued to the court that these statements were defamatory in that they stated or implied that Teka was a stalker, that she was unfit to work, and that she was guilty of harassing behavior. Mind you, some courts may have found Jack’s statements to consist of nothing more than constitutionally protected opinion, but this court found that whether Teka had “harassed” Jack was a statement of fact capable of being disproven at trial. “Thus, the alleged defamatory statement in context contained or implied provably false statements of fact, which added factual content to Defendant’s allegation that Plaintiff had ‘harassed’ him–taking those statements out of the realm of an unactionable opinion,” the court wrote.
The court also rejected Jack’s argument that the alleged statements were not defamatory in nature. As in Virginia, for a statement to be defamatory under D.C. law, it “must be more than unpleasant or offensive; the language must make the plaintiff appear odious, infamous, or ridiculous.” (See Weyrich v. New Republic, Inc., 235 F.3d 617, 627 (D.C. Cir. 2001)). Even if Teka didn’t use her government-issued phone to send him the messages at issue, he argued, this factual error wouldn’t rise to the level of defamation because it’s a relatively minor point and wouldn’t tend to injure Teka’s standing in the community. The court, however, found that a reasonable jury could very well conclude that it would be defamatory to falsely charge Teka with using a government phone to send “harassing messages” or to falsely state that she had “trespassed” on his property. And if the jury does, in fact, determine that such statements amounted to defamation, the court held, the statements would be defamatory per se, relieving Teka of the obligation of proving general damages.
Needless to say, this was not a good result for Mr. Jack. The lesson here is to think twice before reporting another person’s bad behavior to his or her employer. You may have the right to do it, but it’s risky business and may not end well for you.
* The Plaintiff’s name appears to be Salamawit Teka (as that is how she spells her name in the Complaint) but the court’s opinion refers to her as Salamawit Tika.