In this comprehensive defamation guide, we’re going to walk you through everything defamation in the state of Virginia. We’re tackling everything from how Virginia defines defamation of character, to important defamation lawsuit requirements and formalities, all the way to Virginia defamation damages. Consider this your ultimate guide to Virginia defamation law!
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What is Defamation of Character & How Does Virginia Define Defamation?
“Defamation” simply refers to the spoken or written communication or publication of a false fact to a 3rd-party, which subsequently causes damage to another’s reputation.
As the U.S. is a common law legal jurisdiction (think of the United Kingdom, Canada, and Australia), it has categorized defamation as a civil wrong or injury, meaning it’s a “tort” and enables a plaintiff to recover monetary and non-monetary damages for their injury suffered. Defamation may also sometimes be called “the tort of defamation” or “defamation of character.”
All three terms will be used interchangeably in this all-encompassing guide and blog post.
The tort of defamation, also known as defamation of character, can be broken down into two fundamental types: slander and libel. For purposes of bringing a defamation claim in your state and the United States, it’s extremely important for you to understand the difference between the two. Failing to do so could ultimately lead to having your claim dismissed or thrown out altogether, as defamation statutes of limitations may differ by state. Both also boast their own respective legal formalities and requirements.
- Slander: an oral communication of a false statement of fact to a third-party (parties), which subsequently causes damage to another’s reputation. Do note that defamation preserved in a YouTube video or other tangible medium will be considered libel, rather than slander.
- Libel: a written or published communication of a false statement of fact to a third-party (parties), which subsequently causes damage to another’s reputation. Libel includes written statements, along with all media (videos, photographs, etc…).
In our long tenure as Internet attorneys, it’s become evident that the general public typically confuses the terms libel and slander with one another, often using “slander” as a catch-all for every defamatory communication or publication. Due to the rise of the Internet, user-generated content platforms (UGCs), and technology as a whole, libel has in fact become the most common form defamation takes in 2019 – as everything is now preserved on the Internet.
As we noted above, it’s important you familiarize yourself with the differences between libel and slander (so make sure to note the medium in which the defamatory statement was conveyed), otherwise you risk having your defamation claim barred altogether due to not following proper legal formalities and requirements.
For example, as the tort of slander concerns itself with oral communications and spoken statements, it’s much tougher to preserve evidence (after all, it’s spoken). So, slander actions generally have a shorter defamation statute of limitations – time a plaintiff has to initiate their claim.
In order to help you remember the difference between libel and slander, think back to that Latin class you had to take in high school. The Latin word “libellus” means “small book” or “booklet.” So, when you see defamatory comments and communications which are published in a “small book” or online, then you are dealing with libel.
Furthermore, defamation can be referred to by several common names, including:
- Character assassination
Do understand that the term “disparagement” is actually incorrect, and confused with defamation. Disparagement concerns itself with a false statement which causes damage to a person or business’s proprietary and financial rights, rather than their reputation. Disparagement may also be commonly called, “the tort of commercial disparagement” or “the tort of business disparagement.” To read up further on the tort of disparagement and how it differs from defamation, head on over to our comprehensive article, “What is Business Disparagement?“.
So, what do you call a person who publishes or communicates a libelous, slanderous, or defamatory statement?
- Slanderers: persons who orally communicate a false statement of fact to a third-party, which causes harm or injury to another person’s reputation.
- Libelers: persons who publish a written false statement of fact to a third-party (parties), which causes harm or injury to another person’s reputation.
- Defamers: the general term for persons who publish or communicate a defamatory statement to a third-party, which causes harm or injury to another person’s reputation.
- Famacide: a somewhat outdated and archaic term referring to persons who commit defamation. Famacide translates as follows, “to destroy another person’s reputation.”
Now that we’ve taken you through the basic principles which are at the very core of United States defamation and libel laws, let’s turn to how Virginia defines the tort of defamation, and the requisite elements a libel or slander plaintiff must prove in order to succeed in their defamation claim.
Virginia’s Definition of Defamation
Under Virginia defamation law, no distinction is made between libel and slander, and only requires a defamation plaintiff prove the following three (3) elements:
Statements will be considered defamatory in Virginia if the words used “tend 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,” or “make the plaintiff appear odious, infamous, or ridiculous.” Chapin v. Knight-Ridder, Inc., 993 F.2d 1087, 1092 (4th Cir. 1993).
For element two (2), “of and concerning the plaintiff,” an allegedly defamatory statement can be “of or concerning” the plaintiff even if the plaintiff is not identified by name. The element will be satisfied if the plaintiff shows that the statement was “intended to refer to him and would be so understood by persons reading it who knew him.” The Gazette Inc. v. Harris, 229 Va. 1, 35–37 (1985).
Furthermore, publications by the same defendant regarding one specific subject or event and made over a relatively short period of time, some of which clearly identify the plaintiff and others which do not, may be considered together for the purpose of establishing that the allegedly defamatory statements were “of or concerning” the plaintiff. WJLA-TV v. Levin, 264 Va. 140 (Va. 2002).
While in some cases, a business may bring a defamation action on its own behalf when one of its employees is allegedly defamed, there must be a sufficient nexus between the alleged defamatory nature of the statement and the business. Thus, a statement about an employee’s private life was not actionable by her employer absent sufficient allegations establishing a special injury. See Schaecher v. Bouffault, 290 Va. 83, 99–100 (2015).
Let’s take a look at five (5) Virginia defamation cases to help better understand how libel and slander are defined.
Five Virginia Defamation Cases
- A Federal appellate court affirmed that a writer’s online forum postings accusing a lawyer of incompetence, unethical conduct, and encouragement of forum posters to email Ethics Committee members with such accusations were defamatory under Virginia State law. Cretella v. Kuzminski, 640 F. Supp. 2d 741 (E.D. Va. 2009).
- The Virginia Supreme Court found contextual “defamatory innuendo” of otherwise factually true public statements made in the news, emails and online were sufficient basis for a defamation action. Pendleton v. Newsome, 290 Va. 762 (2015).
- A Virginia Court held inaccurate, incomplete, and false information published online about an Air Force cadet’s court-martial proceeding satisfied Virginia’s requirements for a defamation action. Wiest v. E-Fense, Inc., 356 F. Supp. 2d 604 (4th Cir. 2005).
- A Virginia Court deemed that accusations a protestor was secretly involved in a government conspiracy in online articles and YouTube videos were sufficient basis for a defamation action under Virginia law. Gilmore v. Jones, No. 3:18-cv-00017, 2019 U.S. Dist. LEXIS 54750 (W.D. Va. Mar. 29, 2019).
- Finally, in 2019, a Virginia Court found allegations of fraud, theft, and mental disease made on Twitter and online videos alleging fraud, ultimately satisfied the elements of defamation under Virginia defamation law. Steele v. Goodman, No. 3:14cv601, 2019 U.S. Dist. LEXIS 55587 (E.D. Va. Mar. 31, 2019).
Now, let’s take a look at Virginia’s defamation pleading standard for libel and slander lawsuits.
Virginia’s Defamation Pleading Standard
Before tackling Virginia’s pleading standard, let’s first understand why our legal system employs pleadings and the purpose they serve. If you’ve ever watched a popular legal television drama or film, there’s a good chance you’ve heard one of the following terms.
First, what exactly are pleadings?
Pleadings simply refer to the formal written formalities, statements, and requirements that begin a legal action. Pleadings are first filed with the court by the plaintiff, and typically include:
- A statement of facts
- Accusations and assertions by the plaintiff
- The core issues of the case
- Various defenses a defendant may rely upon (after a defendant responds)
After a plaintiff files their pleadings, the defendant then has an opportunity to answer and respond to the accusations, issues, and statement of facts.
Below are some of the most commonly filed pleadings in both Virginia and the U.S.
- Complaint: the first formal document filed by a plaintiff, which outlines their core arguments, claims, and facts. Complaints will also include a “prayer for relief,” which simply means a request for damages.
- Answer: the defendant’s response ( to a plaintiff’s complaint, where they then address or rebut the arguments, allegations, and facts put forth by the plaintiff. This is also the opportunity for defendant’s to raise any defenses they may rely upon.
- Reply: the plaintiff’s subsequent response to any new facts, arguments, or allegations argued by the defendant in their answer. Replies are merely responses to a defendant’s answer.
- Counterclaim: in certain cases, a defendant will file a separate legal claim against the plaintiff who initiated the action in order to offset the plaintiff’s complaint and accusations.
Do note that most states will differ (sometimes substantially) in their pleading requirements for all types of actions. For example, in the case of defamation and libel, one state may require a defamation plaintiff to initiate their claim within a narrower timeframe, while a different state may have a somewhat relaxed defamation statute of limitations time frame for initiating their lawsuit.
Furthermore, some states may require a defamation plaintiff to plead their claim with certain levels of specificity, citing the exact language that was used in a defamatory communication or statement, while other states might only require a plaintiff provide a brief summary of the offensive statement.
If you’re unsure of your state’s respective defamation pleading standard and other legal formalities, it’s important you reach out to an experienced Internet defamation attorney to assist you!
Now that we’ve tackled what pleadings are, let’s turn to the pleading standard that the state of Virginia applies.
Under Virginia law, “Good pleading requires that the exact words spoken or written must be set out in the declaration in haec verba (the exact language). Indeed, the pleading must go further – that is, it must purport to give the exact words.”
So, what’s the reasoning behind this?
The requirement that exact words be included when defamatory statements are alleged ultimately ensures there is no resulting bias to the plaintiffs. Owens v. DRS Auto. Fantomworks, Inc., 87 Va. Cir. 30 (2013).
As we noted above, pleadings often request a prayer for relief, or damages. Now, we’re going to turn to several types of statements which the U.S. and Virginia recognizes as so inherently inflammatory that a plaintiff need not plead or prove damages. Such legal doctrine is referred to as “defamation per se.”
Virginia’s Defamation Per Se Categories
As we mentioned above, defamation per se, also known as libel per se or slander per se, refers to specific types of statements which address certain topics which are considered inherently defamatory. As such, defamation, libel, and slander plaintiffs need not prove damages (economic losses). They are generally considered so inherently defamatory due to the significant damage they tend to cause on a target’s reputation.
Virginia defamation law recognizes four fundamental types of statements as being considered “per se.”
- Words that impute the commission of a criminal offense (one involving moral turpitude) on a person, which, if the charge is true, may be indicted and punished;
- Words that impute an infection of a contagious disease to a person, which, if true, would exclude that person from society;
- Words that impute an unfitness to perform duties of an office or employment of profit, or want of integrity in the discharge of such duties to a person; and
- Words that prejudice a person in his or her profession or trade. Fleming v. Moore, 221 Va. 884, 889 (1981).
Keep in mind that categories (3) and (4) are not satisfied unless the statement necessarily affects the plaintiff in his particular trade or profession. “Not every defamatory statement… is ‘necessarily hurtful’ to a plaintiff’s business and touches the plaintiff in his special trade or occupation.” Id. At 891, 275 S.E.2d at 636-637.
Category one (1) will be satisfied if the words impute the commission of an offense punishable by confinement in a penal institution, and compensatory damages will be presumed when the statement is determined to be defamatory per se. Schnupp v. Smith, 249 Va. 353, 360, 457 S.E.2d 42, 46 (Va. 1995). Great Coastal Express, Inc. v. Ellington, 230 Va. 142, 151 (1985).
When looking into alleged defamatory statements, Virginia courts will strive to read the statements in their entirety. “In order to decide whether or not a statement constitutes defamation per se, the court must read the statements in their entirety… a court may not isolate one portion of the statement at issue from another portion of the statement.” Will Nesbitt Realty, LLC v. Jones, No. CL-2016-14234, 2018 Va. Cir. LEXIS 66, *12 (Apr. 30, 2018).
Moreover, to qualify as defamation per se in Virginia, the plaintiff must show that at the time the defendant made the defamatory statement(s), they “either knew it to be false, or believing it to be true, lacked reasonable grounds for such belief, or acted negligently in failing to ascertain the facts on which the publication was based.” Gazette, Inc. v. Harris, 229 Va. 1, 15 (1985).
We will address the burdens of proof of (1) ordinary negligence and (2) actual malice (reckless disregard) below in Section 3: Public vs. Private Plaintiffs.
2 Virginia Defamation Per Se Cases
Defamation per se actions will be accompanied by an award of presumed damages to the plaintiff, as after all, the defamation plaintiff need not actually prove there was injury or damage to them. We will walk you through the most common defenses to defamation actions in the U.S. and Virginia in Section 5, so keep reading!
If you’re wondering what the opposite of defamation per se is, you’re about to find out. Below we’ll take a look at the flipside of the coin – also known as the legal doctrine of defamation per quod.
Defamation Per Quod & Supporting Evidence
If a false and defamatory statement is not considered ‘per se’, then it will likely be considered as a “per quod” statement in the U.S. and Virginia. Defamation per quod is the antithesis of defamation per se, instead requiring a libel or slander plaintiff to provide supporting and actual evidence of the offensive and defamatory statement in question.
Under Virginia defamation code and law, “Per quod defamation consists of all other defamatory statements not within those four categories, requiring the plaintiff to actually prove damage to reputation. In either event, defamatory statements may be apparent from the face of the words or may arise ‘by inference, implication, or insinuation,’ though they ‘cannot, by innuendo, be extended beyond [their] ordinary and comment acception.’” Frizzell v. Media Gen. Operations, Inc., 71 Va. Cir. 163, 166 (2006).
As defamation per se is associated with presumed damages, it’s important to note that defamation per quod claims will require a defamation prove they suffered “special damages,” which we will also discuss in Section 5.
Does Defamation By Implication Exist in Virginia?
As we noted above, defamation by implication does exist, however it will likely be tackled under a defamation per quod action. As defamation isn’t always cut and dry, defamatory communications and statements are often cloaked and disguised as everyday language and innocuous speech – making for a somewhat difficult libel and slander landscape to navigate.
If you’ve encountered language and statements which strongly imply defamatory facts, then we suggest looking above to better understand ‘Defamation Per Quod’.
Online Defamation Law Fact: While you might think that YouTube videos and other published online videos would be classified as slander, due to the defamatory comments being technically spoken in nature, they are actually considered libel – as they are preserved in a tangible medium. The verdict is still out on live video broadcasts which are not preserved, but courts are tending in favor of classifying such as slander.
If you’re still confused about exactly what is considered libel, slander, and defamation in your state, and have been the victim of defamatory and libelous online attacks and posts, reach out to the nationally recognized defamation removal lawyers of Minc Law now!
Contact us today to schedule your free, initial no-obligation defamation consultation by calling us at (216) 373-7706, or by scheduling a meeting online.
The Online Abuse Stops Now!
Important Virginia Defamation Requirements & Formalities
The U.S. boasts one of the most complex and difficult to navigate legal systems and landscapes in the world, making it extremely overwhelming for defamation victims looking to approach a lawsuit by themselves.
Both the U.S. and Virginia have numerous hurdles defamation and libel plaintiffs need to address in order to lodge a successful defamation claim. In this section, we’re going to walk you through the key defamation requirements and formalities you should be cognizant of when bringing a libel or slander claim in Virginia.
More specifically, we’re going to take you through:
- Virginia courts and their jurisdiction over out-of-state libel plaintiffs,
- Where Virginia defamation plaintiffs may bring a defamation action,
- Virginia’s defamation statute of limitations, and
- Several accompanying and explanatory defamation cases in Virginia.
Do Virginia Courts Have Jurisdiction Over Out-of-State Defamation Defendants?
Simply put, yes. However, there are several boxes that need to be ticked in order for jurisdiction to exist.
Virginia courts may exercise personal jurisdiction over out-of-state defendants via its long-arm-statutes, and when, among other things, the cause of action arises from:
- The defendant’s business transactions within the Commonwealth,
- Tortious injury caused in the Commonwealth, or
- Use of a computer or computer network located within the Commonwealth. Va. Code Ann. § 8.01-328.1.
For example, in Blue Ridge Bank v. Veribanc, Inc., 755 F.2d 371 (4th Cir. 1985), the Fourth Circuit held that a Massachusetts company that provided financial data to a reporter who in turn published a defamatory article about a Virginia bank was ultimately subject to personal jurisdiction under Virginia’s long-arm-statute.
In Massey Energy Co. v. United Mine Workers, 69 Va. Cir. 118, 124-125 (2005), a Virginia court ultimately found personal jurisdiction existed after an advertiser purposefully availed itself to the laws and privileges of Virginia by purchasing television and newspaper advertising that reached customers in Virginia.
Furthermore, publication of a defamatory statement or communication about a Virginia resident utilizing AOL, which is located in Virginia, has in the past conferred personal jurisdiction in Virginia. Bochan v. La Fontaine, 68 F. Supp.2d 692 (E.D. Va. 1999), Telco Communications v. An Apple A Day, 977 F. Supp. 404 (E.D. Va. 1997).
In Young v. New Haven Advocate, 184 F. Supp. 2d 498 (W.D. Va. 2001), a Virginia Federal District Court concluded that the exercise of personal jurisdiction over Connecticut newspapers was proper under Va. Code Ann. § 8.01-328.1 (A)(3) because the defendants’ papers were published on the Internet and accessible in Virginia.
However, this was ultimately reversed because the newspapers did not manifest an intent to aim the posted article at a Virginia audience., Even though their materials were accessible on the Internet in Virginia, the appeals court deemed it improper to exercise jurisdiction over them because of insufficient contacts. Young v. New Haven Advocate, 315 F.3d 256, 263–4 (4th Cir. 2002).
Since the Fourth Circuit’s decision in Young, lower federal courts have decided cases involving electronic mail that focused on jurisdictional inquiry on the presence or absence of facts showing that the defendant targeted Virginia recipients. See Aitken v. Communications Workers of America, 496 F. Supp. 2d 653 (E.D. Va. 2007). (CAN-SPAM action with pendent defamation claim finding intentional transmission to servers and recipients in Virginia); Headstrong Corporation v. Jha, No. 3:05CV813-HEH, 2007 U.S. Dist. LEXIS 31135 (E.D. Va. 2007) (personal jurisdiction absent where e-mail messages were sent to parties in India and redirected to Virginia).
Let’s take a look at several examples:
- In 1999, a Virginia resident sued an unknown defendant for defamatory statements posted online. Although the server hosting the defamatory statements was physically located within Virginia and was integral to publication of the statements, this was insufficient to meet the “minimum contacts” requirement under Virginia and federal law. Melvin v. John Doe, 49 Va. Cir. 257 (1999).
- A sales representative sued his out-of-state supervisors for a conspiracy to defame him and ruin his career prospects. The sales rep alleged that they worked together to falsify his performance reports and certification tests. Under the conspiracy theory of jurisdiction, all supervisors fell under the long-arm statute because they each knowingly acted in furtherance of the defamation tort in Virginia. Nathan v. Takeda Pharm. Am., Inc., 83 Va. Cir. 216 (2011).
So, where can Virginia defamation plaintiffs sue persons who have committed libel or slander?
Venue: Where Can Virginia Defamation Plaintiffs Sue?
When bringing a defamation action in the state of Virginia, venue will be appropriate in:
- The county or city where the claimant resides;
- The county or city where the act or omission complained of occurred; or
- If the claimant resides outside the Commonwealth and the act or omission complained of occurred outside the Commonwealth, the City of Richmond.
In 1985 defamation case The Gazette, Inc. v. Harris, 229 Va. 1 (1985), the single publication rule was applied in granting a transfer of venue.
Now, let’s turn to the important procedural step of determining which law to apply to certain types of cases.
Choice of Law: Which One Does Virginia Follow?
Choice of law refers to an important step in the litigation process whereby differing legal jurisdictions and states assess a claim and determine the proper place for the issue and case to be tried, or the “proper law.”
When deciding which state’s laws should be applied to an issue or case at hand, courts will generally look to where a contract governing a transaction was signed and enforced, where a marriage between two persons took place, and where the tort in question was committed.
Do note that the above three examples are just a few examples of factors courts will look to when determining choice of law.
Virginia applies the lex loci delicti rule. The lex loci delicti rule looks to the law of the place of the wrong when determining which choice of law is proper. For example, in Virginia defamation cases, courts will generally look to where the statement was published. PBM Prods., LLC v. Mead Johnson Nutrition Co., 678 F. Supp. 2d 390, 398 (E.D. Va. 2009). See also, Jeffrey J. Nelson & Associates, Inc. v. LePore, No. 4:11cv75, 2012 U.S. Dist. LEXIS 93097, at *26–27 (E.D. Va. July 5, 2012).
In a 2008 case, a federal district court applied Virginia law to analyze online postings where the state from which the website was controlled was unknown but the statements were published in Virginia and probably posted by a defendant in Virginia. Cretella v. Kuzminski, No. 3:08-CV-109, 2008 U.S. Dist. LEXIS 42152, *7–8 (E.D. Va. May 29, 2008).
Virginia Defamation Statute of Limitations
Before we tackle Virginia’s defamation statute of limitations, let’s first understand the core principles driving their existence and how they enable a smoother working judicial system.
To start, a statute of limitations simply refers to a time limiting restraint and mechanism which controls legal actions and a person’s ability to bring them. Should a party fail to bring their claim within the specified statute of limitations (time-frame), then they may risk having their action dismissed or thrown out altogether.
So, what are the fundamental ideas driving a statute of limitations?
- Preservation of important evidence: Evidence can be fleeting, and is often destroyed (intentionally or unintentionally). Time is of the essence when bringing a legal action, so it’s in both parties best interests to put their best foot forward with necessary and relevant evidence. Statutes of limitations ultimately help cut down the chances that a party has lost or destroyed key evidence.
- Reasonable diligence: Our legal system is unfortunately clogged and bogged down by countless cases (a good percentage of them being frivolous and unactionable). Statutes of limitations help reduce the number of frivolous actions being filed every year (and years later), as they require a party to bring their claim in a reasonable time and with reasonable diligence.
- Elimination of “more cruelty than justice”: Statutes of limitations exist to help eliminate more cruelty than justice, by providing defendants and other parties with sufficient notice of a pending legal action or claim. Doing so ultimately helps create a more equal litigation and legal landscape.
So, how long is Virginia’s defamation statute of limitations?
Va. Code Ann. § 8.01-247.1 provides a one (1) year statute of limitations for defamation actions in the state of Virginia.
However, if the defamatory statement is made anonymously or under a false identity on the Internet, a defamation action may be filed and the statute of limitations shall be tolled (extended), until the identity of the publisher is discovered or, by the exercise of due diligence, reasonably should have been discovered. Va. Code Ann. § 8.01-247.1.
Va. Code Ann. § 8.01-229 provides for other events which may effectively extend the statute of limitations as provided in § 8.01-247.1. For example, a plaintiff may take one voluntary nonsuit and then refile within the remaining imitations period or six months, whichever is longer. Where a plaintiff sued a defendant who accused him of theft and caused his arrest, a Virginia trial court held that the § 8.01-247.1 one (1) year limitations period ran from the date of the plaintiff’s acquittal on criminal charges rather than from the date of the original publication. Daniels v. Melart Jewelers, 40 Va. Cir. 254 (1996).
The reason? Before that date the plaintiff could have been estopped from recovery by a potential conviction, which would have adjudged the accusation as true.
The trial court did not consider whether the statute would have run had a third party, such as a media reporting the accusation, been sued. Spencer v. American Int’l Group, Inc., No. 3:08CV00591, 2009 U.S. Dist. LEXIS 457 (E.D. Va. Jan. 6, 2009) (finding a defamation claim barred by the statute of limitations).
However, in the 2008 case of Cominelli v. The Rector and Visitors of Univ. of Virginia, 589 F. Supp. 2d 706, 718 (W.D. Va. 2008), a Virginia court found that where a claim is already barred due to agreement expiration, an agreement to toll the statute of limitations will not apply to a defamation claim. Additionally, they ultimately denied the plaintiff’s claim of equitable estoppel to prevent application of the statute of limitations.
Finally, where the plaintiff does not elaborate on the content of the intentional misrepresentations made to him, the “presence of a few conclusory legal terms” does not estop the plaintiff from asserting a statute of limitations defense. Jackson v. Michalski, No. 3:10-cv-00052, 2011 U.S. Dist. LEXIS 93361, at *36 (W.D. Va. Aug. 22, 2011) (citing Young v. City of Mt. Ranier, 238 F.3d 567, 577 (4th Cir.2001)).
So, how does Virginia’s defamation statute of limitations stack up when compared to other states in the U.S.?
Internet Libel Removal Tip: To combat online defamation and libelous attacks as soon as they appear, we recommend setting up a Google Alerts account. Doing so is a free and effective way to receive alerts anytime your name is mentioned online. Identifying online defamation and libel can be difficult due to the sheer number of cites a libelous or malicious attack may be posted on – not with Google Alerts.
Single Publication Rule: Does Virginia Recognize It?
Similar to statutes of limitations, the single publication rule is also a critical legal restraint in the world of defamation, as it ultimately restricts a plaintiff’s ability to bring more than one defamation claim for each publication. More specifically, the single publication rule limits a libel plaintiff’s right to recovery, only enabling them to initiate a single lawsuit for a libelous publication. Without it, our already clogged judicial system might ultimately fall victim to frivolous suits, which keep getting litigated over and over again.
Do note that if a defamatory publication or communication is subsequently materially altered, then a plaintiff may likely bring a new defamation suit.
In the 1984 case of Morrissey v. William Morrow & Co., Inc., 739 F.2d 962 (4th Cir. 1984), the Fourth Circuit held that Virginia does in fact recognize the single publication rule.
Additionally, in Moon v. CBS, Inc., 7 Va. Cir. 68 (1981), a Virginia trial court adopted the single publication rule.
Both cases applied the then applicable one-year statute of limitations of Va. Code § 8.01-248.
However, in Armstrong v. Bank of Am., 61 Va. Cir. 131, 132–133 (2003), the trial court ruled that the single publication rule did not apply to credit slander due to fear of numerous lawsuits springing from the defamatory statements not being present (as it would be for statements made in national publications).
Understanding your state’s defamation statute of limitations is critical for bringing a successful libel and slander action. Failing to bring a defamation claim within the requisite time could ultimately lead to having your case dismissed or thrown out altogether.
If you’re a resident of Virginia, or any other U.S. state, and have been the victim of online defamation and other malicious online attacks (including revenge porn), reach out to the experienced internet defamation removal attorneys of Minc Law ASAP!
In our storied tenure as defamation attorneys, we’ve secured the effective removal of over 25,000 websites and pieces of libelous content, litigated in over 22 states and 3 countries, and support a nearly 100% online defamation takedown and removal rate. And, we do it all for a reasonable fee. We’ve also built up an arsenal of tactics to offer guaranteed removals for certain online websites and platforms, which can be found over at our ‘Services’ page.
Rest assured when working with the Ohio-based defamation lawyers of Minc Law, you’re in good hands.
Reach out to us today to schedule your free, initial no-obligation defamation consultation by calling us at (216) 373-7706 or by scheduling a meeting by filling out our online contact form.
We’re here to fight for your reputation!
Public vs. Private Defamation Plaintiffs: Which One Are You?
When bringing a libel or slander claim in the U.S., it’s important to understand that a plaintiff’s rights and remedies will depend on their “status” in the community and society. Depending on what type of plaintiff you are, you may need to meet one of two burdens of proof in order to succeed in your claim. Specifically, U.S. defamation and libel law recognizes two distinct types of plaintiffs:
- Private plaintiffs, and
- Public plaintiffs.
In this section, we’re going to take you through the defamation precedents which ultimately shaped modern-day libel and defamation law as we know it in the U.S., the respective burdens private and plaintiffs must prove in order to succeed in their claim, and more. And, we suspect you might just be surprised to learn which type of defamation plaintiff you are.
First, let’s get started with the reason why United States courts differentiate between public and private defamation and libel plaintiffs.
The distinction between both private and public defamation plaintiffs was first ruled on in the landmark case of New York Times Co. v. Sullivan. In Sullivan, the U.S. Supreme Court ultimately found that it was important to differentiate the two when determining a plaintiff’s rights and remedies, and thus differing burdens of proof should exist.
The Supreme Court noted that as public figures have specifically availed themselves to the public light, comment, and critique, it was important that they should meet a much stricter burden when bringing a defamation claim. Furthermore, curbing such critique, comment, and discussion would ultimately prevent “uninhibited debate of public issues,” a fundamental component of democracy.
Below are the two fundamental types of defamation plaintiffs the U.S. Supreme Court ruled on, and their respective burdens of proof which must be met in order to succeed in their claim.
- Public Persons/Plaintiffs: Public persons and plaintiffs are generally persons of prominence in the community and society. Think of television actors, celebrities, politicians, and sports athletes – all are likely considered public figures in the eyes of the law. Public persons and plaintiffs are persons who have voluntarily or involuntarily availed themselves to the public light, comment, or criticism. As they are prominent members of society (or have some influence), it’s important for the general public to be able to discuss them without fear of legal repercussions. As a result, public plaintiffs and persons must prove a defamation defendant acted with actual malice or reckless disregard when communicating or publishing a defamatory statement.
- Private Persons/Plaintiffs: If you’re reading this, you most likely fall under the classification of “private plaintiff,” due to the fact that you have not voluntarily or involuntarily availed yourself to public comment, critique, or discussion. After all, you likely would rather keep your personal life and social affairs out of the press and news. Private plaintiffs have a much less strict burden that public persons and plaintiffs when bringing a defamation claim, and need only prove that a defamation defendant acted with ordinary negligence when communicating or publishing a defamatory statement. Ordinary negligence simply means conduct which exceeds the scope of how a reasonable person would act in a similar situation.
While there are two broad categories of defamation plaintiffs in the U.S., most states narrow the scope even further, and recognize four types of defamation plaintiffs in society.
- Private Plaintiffs,
- Public Officials,
- General Purpose Public Figures, and
- Limited-Purpose Public Figures.
Virginia follows the Supreme court’s ruling in Sullivan and Gertz v. Robert Welch to differentiate between private figures, public figures, and public officials in defamation and libel cases. In Virginia’s defamation history, there has been strict adherence to the opinions expressed in Hutchinson and Wolston, thus, Virginia will typically apply the public figure/official doctrine conservatively, and require a high threshold of public activity by the plaintiff. Fleming v. Moore, 221 Va. 884 (1981).
How Does Virginia Define Actual Malice?
While private plaintiffs in Virginia only need prove the elements of defamation and ordinary negligence in order to recover compensatory damages, public officials, public figures, and any claimant requesting punitive damages in Virginia must prove the defamatory communication or publication was done so with actual malice. Jordan v. Kollman, 269 Va. 569, 576-77 (2005) (citing New York Times Co. v. Sullivan, 376 U.S. 254, 279-80 (1964) and Gertz v. Robert Welch, Inc., 418 U.S. 323, 342, 347 (1974)).
“The burden of proving ‘actual malice’ is upon the plaintiff who must demonstrate by clear and convincing evidence that the defendant realized that his statement was false or that he subjectively entertained serious doubts as to the truth of his statement.” Id. at 577.
Keep in mind that if you’ve been the victim of libelous and false attacks on the Internet, and are unsure of what type of defamation plaintiff you are legally considered, reach out to an experienced Internet attorney as soon as possible. Doing so is important for saving both time and hassle.
To help with your understanding of the four types of defamation plaintiffs recognized in Virginia and most U.S. states, below is a comprehensive table.
|Virginia’s Four Classifications of Defamation Plaintiffs||Private Plaintiffs||Public Officials||Public Figures (All-Purpose||Limited-Purpose Public Figures (LPPFs)|
|Definition||Private Plaintiffs are persons who have not voluntarily or involuntarily availed themselves to public debate, criticism, comment, or discussion. They may also be defined as any person not falling within any of the following three categories: (1) Public Officials, (2) Public Figures, (3) Limited-Purpose Public Figures.||Under Virginia law, “…the public official designation applies at the very least to those among the hierarchy of government employees who have, or appear to the public to have, substantial responsibility for or control over the conduct of governmental affairs,” and “is by no means limited to upper echelons of government.” Horne v. WTVR, LLC, 893 F.3d 201, 207 (4th Cir. 2018)[internal quotations omitted].||Virginia defines All-Purpose Public Figures as persons who “…have assumed roles of especial prominence in the affairs of society. Some occupy positions of such persuasive power and influence that they are deemed public figures for all purposes.”||Virginia law expands upon the traditional notion of an All-Purpose Public Figure, recognizing parties who are not at the forefront of societal affairs 24/7. Virginia defines Limited-Purpose Public Figures as public figures that “…have thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved. In either event, they invite attention and comment.” Fleming v. Moore, 221 Va. 884, 891 (1981) (citing Gertz v. Robert Welch, Inc., 418 U.S. 323, 345 (1974).|
|Burden of Proof||Ordinary Negligence||Actual Malice||Actual Malice||Actual Malice|
|Examples||Every day persons who have not thrust themselves to the forefront of society or a particular issue.||To determine whether a plaintiff has apparent substantial responsibility, the court will look to whether “[t]he employee’s position [is] one which would invite public scrutiny and discussion of the person holding it, entirely apart from the scrutiny [sic] and discussion occasioned by the particular charges in controversy.” Id. (citing Rosenblatt v. Baer, 383 U.S. 75, 86 (1966)). For example, the Navy ship USS Carl Vinson’s Public Affairs Officer was held to be a public official in a defamation suit brought after claims were made in news and online that he was a racist. Sharpe v. Landmark Communs., No. CL08-1664, 2009 Va. Cir. LEXIS 2075 (2009).||Public Figures are generally celebrities, athletes, politicians, and other prominent figures in society.||(1) A protester who interviewed with various news outlets after Charlottesville “Unite the Right” rally was afterward subjected to defamatory accusations made through online videos, news articles and social media. The Fourth Circuit found that the protestor was a limited-purpose public figure.” Gilmore v. Jones, No. 3:18-cv-00017, 2019 U.S. Dist. LEXIS 54750 (4th Cir. 2019). (2) A federal district court, applying Virginia law, held that a plaintiff who engaged in a course of action that invited inevitable comment was a limited-purpose public figure. (3) A photograph of a campaign worker standing next to a congressional candidate was published on fliers and online by the opposing political party with a caption implying that the campaign worker was a sex offender, rapist and child molester. The court ultimately held that the campaign worker did not qualify as a Limited-Purpose Public Figure.|
Do note that the Virginia Supreme Court has not yet ruled on how the public figure test applies to corporations.
The Fourth Circuit has also held that persons publicly accused of serious sexual misconduct punishable by imprisonment cannot be deemed limited-purpose public figures merely because they make reasonable public replies to the accusations – even where “some of their public statements were probably intended (at least in part) to influence the outcome … of the legislative debate in Congress.” Foretich v. Capital Cities/ABC, Inc., 37 F.3d 1541, 1563 (4th Cir. 1994).
However, in the case of New Life Center, Inc. v. Fessio, No. 99-1658, 2000 U.S. App. LEXIS 20894 (4th Cir. August 16, 2000), the Fourth Circuit determined that an organization providing therapy for members of the Roman Catholic religious community was a limited purpose public figure with regard to the sexual misconduct of priests and their proper treatment.
Issues of Public & Private Concern in Virginia
Just as U.S. defamation and libel law distinguishes between both public and private plaintiffs in furtherance of promoting uninhibited debate and discussion, it also differentiates between issues of public and private concern. After all, there’s clearly specific issues and topics that should be discussed freely by the American public, while others should have some checks and balances in place.
At the end of the day, should the U.S. legal system fail to differentiate between public and private issues, the very democratic mechanisms and institutions which propel our society would fail to evolve at a commensurate rate to what society demands.
If private persons need only prove a defendant acted with ordinary negligence when bringing a defamation claim, it should only be natural that private issues follow suit. Private persons and their private issues are well…private for a reason – and not intended to be broadcast to the rest of the world. Having one’s personal details and life thrust into the public light could ultimately avail them to unwanted personal attacks, unsavory attention, and in some cases, physical violence.
Additionally, just as statements about public figures and plaintiffs require a plaintiff prove a defendant published or communicated a defamatory statement with actual malice or reckless disregard, issues of public concern generally require the same.
At time of publication, there are no notable cases in the state of Virginia pertaining to issues of private and public concern, so we recommend looking to the above cases concerning private and public figures to better understand the matter.
U.S. Defamation Law Fact: The United States is typically considered a pro-defendant libel and slander jurisdiction due to its long-standing enforcement of the Constitution and First Amendment (freedom of speech). Other common law countries, such as the United Kingdom, Australia, and Canada, along with European countries are however considered pro-plaintiff defamation jurisdictions.
If you’ve been the victim of online harassment, extortion, and defamatory attacks, reach out to the experienced Internet defamation attorneys of Minc Law today! At Minc Law, we’re here to help take back your reputation, online presence, and livelihood. We have proven success removing malicious and libelous online content and websites, and identifying anonymous online posters.
Contact us today to get started!
Now that we’ve taken you through the requisite elements a Virginia defamation plaintiff must prove in order to succeed in their claim, the various types of defamation plaintiffs in the U.S., and the most important defamation lawsuit formalities and requirements you should keep in the back of your mind, let’s now turn to the most common defenses to defamation claims.
Common Defenses to Virginia Defamation Lawsuits
In the highly nuanced and complex world of U.S. defamation and libel law (and Virginia defamation law), there’s numerous defenses a defamation defendant may rely on when confronted with a defamation action.
In this section, we’re going to walk you through some of the most commonly utilized defamation defenses to libel and slander actions in the state of Virginia and U.S.
Below are just several of the most common defenses to defamation in the United States and Virginia:
- Privilege (Absolute, Qualified, Statutory, Fair Report, Reporter’s),
- Incremental Harm Doctrine,
- Libel-Proof Plaintiff Doctrine,
- Wire-Service Defense.
Let’s first start with possibly the most popular defense to defamation in the U.S. and Virginia – the defense of opinion.
Is Opinion Considered Defamatory in Virginia?
At the very core of a defamation action is the assertion of a false statement of fact, meaning, if the content of the statement or publication may be independently verified as false or true, then it may be determined to be fact (instead of opinion).
Statements which are incapable of being independently verified as true or false, will likely fall under the defense of opinion, and allow defamation and libel defendants in the U.S. and Virginia to skirt liability.
Under Virginia law, it is “firmly established” that “pure expressions of opinion are protected by both the First Amendment to the Federal Constitution and Article 1, Section 12 of the Constitution of Virginia and, therefore, cannot form the basis of a defamation action.” Williams v. Garraghty, 249 Va. 224, 233 (1995).
Generally, a statement will be considered opinion if it is “relative in nature and depend[s] largely upon the speaker’s viewpoint,” or if it “does not contain a provably false factual connotation.” Raytheon Tech. Servs. Co. v. Hyland, 273 Va. 292, 303 (2007) (“Raytheon I”). WJLA-TV v. Levin, 264 Va. 140, 156 (2002).
More specifically, the latter category includes “rhetorical hyperbole,” defined as statements from which “no reasonable inference could be drawn that the individual identified in the statements, as a matter of fact, engaged in the conduct described.” Yeagle v. Collegiate Times, 255 Va. 293, 296 (1998).
When determining if a statement or publication should be considered opinion or fact, a court cannot review the statement in isolation, but rather must consider the entire statement in the context in which it was published. Hyland v. Raytheon Tech. Servs. Co., 277 Va. 40, 47-48 (2009) (“Raytheon II”). Hence, a speaker’s choice of words and the context of an allegedly defamatory statement within the speech as a whole are factors to consider when deciding if a challenged statement is one of fact or opinion. Fuste v. Riverside Healthcare Ass’n, 265 Va. 127, 133 (2003) (citing Blue Ridge Bank v. Veribanc, Inc., 866 F.2d 681, 685 (4th Cir. 1989)).
Let’s take a look at several examples of opinion in the state of Virginia.
Defense of Opinion in Virginia Examples
The Absolute Defense of Truth/Falsity
So, what happens when a statement isn’t classified as opinion and may actually be independently verified as true or false? Well, there may be a legitimate reliance on the defamation of truth/falsity by a defamation defendant.
If you’re confronting a statement which may be independently verified as fact or fiction, it’s important to ask yourself if the statement is actually true. If it is, then there is likely no actionable defamation claim. While the truth may hurt, that does not give rise to a legitimate libel or slander claim.
In determining whether allegedly defamatory statements are true or false, “it is not necessary to prove the literal truth of statements made. Slight inaccuracies of expression are immaterial provided the defamatory charge is true in substance, and it is sufficient to show that the imputation is substantially true.” Saleeby v. Free Press, 197 Va. 761, 763 (1956).
Put another way, “[i]f the gist or ‘sting’ of a statement is substantially true, minor inaccuracies will not give rise to a defamation claim.” AIDS Counseling & Testing Centers v. Group W Television, Inc., 903 F.2d 1000, 1004 (4th Cir. 1990) (internal quotations omitted); Accord Chapin v. Knight-Ridder, Inc., 993 F.2d 1087, 1092 (4th Cir. 1993) (“the falsity of a statement and the defamatory ‘sting’ of the publication must coincide”).
Likewise, a plaintiff cannot combine the damaging nature of certain true statements with the falsity of other, immaterial statements in order to provide the basis for the defamation claim. Generally, courts will apply the substantial truth doctrine, which looks to whether the statement as a “whole” is defamatory, but for minor inaccuracies and falsities. See AIDS Counseling, 903 F.2d at 1004.
In cases involving defamation by implication, the literal truth of the statement is not dispositive, if, in context, the statement conveys a defamatory meaning. See Pendleton v. Newsome, 290 Va. 162, 173 (2015). See also Mirafuentes v. Estevez, No. 1:15-cv-610, 2015 U.S. Dist. LEXIS 166157, at *7–9 (E.D. Va. Nov. 30, 2015) (headline not actionable when read in context with the underlying article).
Let’s take a look at two example legal cases tackling the defense of truth in Virginia.
Virginia & The Defense of Truth/Falsity
Privilege: A Party’s Legal Right to Do or Say Something
Just as almost every legal doctrine and principle applied in U.S. defamation and libel law is in furtherance of promoting uninhibited debate and open discussion, so too is the defense of legal privilege. Simply put, privilege refers to a party’s legal right, joy, or entitlement to do or say something, at a certain time, and to a specific audience – even if the contents of the publication or communication are defamatory.
Privilege is essential for a thriving democracy, and is commonly used in our most important and fundamental decision making institutions and processes, such as in legislative, judicial, administrative, and other official proceedings.
When discussing legislation, regulation, and reform which affects society as a whole, it’s important that both sides of the coin are addressed. Yes, even the defamatory and unsavory topics. Without legal privilege, persons at the very heart of our decision making institutions and processes would be punished, and laws and regulations as we know it would ultimately fail to stand the test of time.
In this section, we’re going to take you through the most common forms of legal privilege in Virginia and the U.S.
- Absolute Privilege,
- Qualified Privilege,
- Statutory Privilege,
- Fair Report Privilege,
- Reporter’s Privilege.
Let’s first start with the top dog of legal privilege in the U.S. and Virginia – absolute privilege.
Absolute Privilege: The Top Dog
Absolute privilege is the most comprehensive form of privilege that exists, and refers to a party’s unconditional and unqualified right to do or say something, at a specific time, and to a certain audience – even if defamatory.
As absolute privilege is all-encompassing (and top dog), it also protects persons who communicate and publish statements with actual malice or reckless disregard.
Due to its comprehensive nature, absolute privilege lends itself to legislative, judicial, administrative, and other official proceedings, and is generally relied on by government workers and politicians.
Virginia recognizes two (2) sources of absolute privilege:
- Statements made in the course of judicial proceedings, and
- Statements made in the course of legislative proceedings.
Statements made during judicial proceedings are absolutely privileged in Virginia, so long as they are pertinent and relevant to the subject-matter of the proceedings. Mansfield v. Bernabei, 284 Va. 116 (2012). Absolute privilege attached to judicial proceedings in Virginia broadly includes:
The absolute privilege attached to legislative proceedings, on the other hand, applies only to a legislative body, like a Board of Supervisors when it acts in its legislative (as opposed to its supervisory or administrative) capacity. Isle of Wight County v. Nogiec, 281 Va. 140 (2011).
Qualified Privilege: The Second in Command
Qualified privilege, like absolute privilege, also refers to a person’s right to do or say something, at a specific time, and to a specific audience. However, it attaches in fewer situations and is not all-encompassing. Qualified privilege may also be commonly referred to as “Common Interest Privilege.” It does not protect statements or publications which were made with actual malice or reckless disregard.
Additionally, qualified privilege generally only attaches in situations where an audience has a reciprocal interest in hearing a specific type of communication or publication, and is typically relied upon by persons in positions of authority and trust.
Under Virginia law, Virginia courts will recognize a qualified privilege:
- “Where the author or publisher of the alleged slander acted in the bona fide discharge of a public or private duty, legal or moral, or in the prosecution of his own rights or interest,” or
- “In regard to “anything said or written by a master in giving the character of a servant who has been in his employment.” Williams Printing Co. v. Sanders, 113 Va. 156, 176 (1912). Williams Printing Co. v. Sanders, 113 Va. 156, 176 (1912).
Once qualified privilege has attached to a communication in the state of Virginia, the plaintiff has the burden to prove that the privilege has been lost or abused, which must be shown by clear and convincing proof. Cashion v. Smith, 286 Va. 327, 338 (2013).
A plaintiff may however overcome the qualified privilege granted to a defendant by showing:
- The statement was made with actual malice;
- The statement was communicated to third parties who has no duty or interest in the subject matter;
- The statement was motivated by personal spite or ill will;
- The statement included strong or violent language disproportionate to the occasion; or
- The statement was not made in good faith.
Although the above list is not exhaustive, proof of any one of these elements by clear and convincing evidence will defeat qualified privilege under Virginia defamation code. Id.
Virginia Defamation Cases Where Qualified Privilege Has Attached
- Fair and substantially accurate reports of public records to which everyone has a right of access are unqualifiedly privileged in Virginia. Alexandria Gazette Corp. v. West, 198 Va. 154 (1956).
- Fair Comment will enjoy qualified privilege in the state of Virginia. The court in James held that “immunity should be granted to newspapers and other citizens in the discussion of public affairs,” where there is no proof of actual malice. James v. Haymes, 163 Va. 873 (1935). Slight, unintentional errors in stating the facts underlying the comment will not destroy the privilege, and “[w]hen a publication deals with a matter of public concern and the false statements of facts on which the publication is bared are not defamatory per se, that defendant made the statements published for a proper purpose, in good faith and had probable cause to believe, and did believe they were true, he will not be held liable even though their falsity is subsequently established.” Id. at 886.
- Testimony given at a police investigatory hearing in Virginia is qualifiedly privileged. Elder v. Holland, 208 Va. 15, 155 (1967).
- Comments made by an employer to his employees and other interested persons concerning the reason for the discharge of an employee will enjoy qualified privilege. Kroger Company v. Young, 210 Va. 564 (1970).
- Statements made to interested family members about other members of the family are protected under qualified privilege. Id.
- Statements made by one in his own defense will enjoy qualified privilege in VA. Haycock v. Dunn, 200 Va. 212 (1958).
- Statements made by one competitor against another are qualifiedly privileged. Powell v. Young, 151 Va. 985 (1928).
- Complaints about a policeman, which are made to the Chief of Police are protected under Common Interest privilege in VA. Smalls v. Wright, 241 Va. 52 (1991).
- Statements made in a report of suspected child abuse are protected under qualified privilege in Virginia. Wolf v. Fauquier County Bd. of Supervisors, 555 F.3d 311 (4th Cir. 2009).
- Statements made in a report to a county Board of Supervisors acting in its non-legislative supervisory capacity about museum repairs are qualifiedly privileged. Isle of Wight County v. Nogiec, 281 Va. 140 (2011).
Statutory Privilege: It’s the Law
Deriving its name from the word “statute,” statutory privilege simply refers to a right granted to person’s explicitly in the law. Statutory privilege prescribes for specific situations and circumstances whereby a party should enjoy immunity from doing or saying something.
Below are six notable privileges prescribed for by statute in Virginia:
- School personnel: School personnel reporting on alcohol or drug abuse;
- Radio broadcasts: Broadcasts by radio or television stations of statements made by another party;
- Review Commissions: Filing papers and testimony made before Judicial Inquiry and Review Commission;
- Merchants: Merchant’s privilege in respect to detaining suspected shoplifters;
- Insurance: Disclosure of personal or privileged information to an insurance institution, agent, or insurance-support organization;
- Insurance Policies: Statements made within the context of cancellation or nonrenewal of an insurance policy;
- Professional Conduct: Statements made concerning the professional conduct of any member of the bar of Virginia before any bar association or committee thereof.
Fair Report Privilege & Public Records
Fair report privilege was implemented in order to protect organizations and persons who rely on government (and official) reports, documents, and proceeding excerpts, and subsequently republish them. Without fair report privilege in place, our media would cease to exist (or be as robust), due to being unable to republish government and administrative reports without fear of legal repercussions and consequences.
While qualified privilege in the state of Virginia has been held to attach to fair and substantially accurate reports of public records, to which everyone has a right of access, the precise scope of this privilege is still unclear, as the only cases in which it has previously been considered concern reports of judicial proceedings. Alexandria Gazette Corp. v. West, 198 Va. 154 (1956).
For example, in the 1988 cases of Lee v. The Dong-A Ilbo, 849 F.2d 876 (4th Cir. 1988), the Fourth Circuit held that under Virginia law, fair report privilege did not apply to reports issued by a foreign government.
And, where the defendants only mentioned a plaintiff’s conviction and not the later reversal of that conviction, which resulted in the report being ruled as not a “fair and substantially correct” restatement of the public record. And thus, not privileged. Wiest v. E-Fense, Inc., 356 F. Supp. 604, 609–10 (E.D. Va. 2005).
Over vigorous dissent, two judges on the Fourth Circuit panel applied a “fair report” privilege to the unofficial public remarks of a member of Congress. Chapin v. Knight-Ridder, Inc., 993 F.2d 1087 (4th Cir. 1993).
What is Reporter’s Privilege?
While ‘Reporter’s Privilege’ may seem similar to ‘Fair Report Privilege’, it actually differs quite significantly. Specifically, reporter’s privilege, also known as journalist’s privilege or press privilege, refers to a reporter’s legal protection under both Constitutional and statutory law from being forced to testify about highly confidential information and sources provided to them in the course of duty.
Under Virginia defamation law, there is no statutory shield law. However, in the 1974 Virginia case of Brown v. Commonwealth, 214 Va. 755 (1974), the Virginia Supreme court recognized a qualified First Amendment privilege for reporters, enabling them to refuse to disclose confidential information in criminal cases. This qualified privilege has subsequently been recognized by a circuit court in a libel action. Philip Morris Companies, Inc. v. American Broadcasting Companies, Inc., 23 Media L. Rep. 1434 (Cir. Ct. City of Richmond 1995).
Furthermore, in Larouche v. National Broadcasting Co., Inc., 780 F.2d 1134 (4th Cir. 1986), the Fourth Circuit recognized the same.
Since the mid-1990s, the Fourth Circuit has since clarified, however, that the qualified privilege articulated in Larouche does not apply in criminal cases. “[S]o long as the subpoena is issued in good faith and is based on a legitimate need of law enforcement, the government need not make any special showing to obtain evidence of criminal conduct from a reporter in a criminal proceeding. The reporter must appear and give testimony just as every other citizen must.” United States v. Sterling, 724 F.3d 482, 496 (4th Cir. 2013).
|Definition||The most comprehensive form of legal privilege, which enables persons to communicate specific statements, to a specific audience, at a specific time, regardless of whether or not it is considered defamatory.||A less comprehensive form of legal privilege, which enables a person in a position of authority or trust to communicate or disseminate a specific statement, to a specific audience, at a specific time. The audience in question must also possess a reciprocal interest in hearing such statement.||Legal privilege bestowed upon persons by law. Statutory privilege will prescribe for a specific situation where a speaker is protected when communicating a statement.||A legal privilege protecting institutions, organizations, and persons who publish or republish fair and substantially accurate reports of public records to which everyone has a right of access.||A legal privilege granted to journalists, protecting them from being forced to testify in legal proceedings about highly confidential information and sources.|
|Can it be defeated?||Under Virginia law, absolute privilege will not be defeated. Even where statements and communications are disseminated with actual malice or reckless disregard.||Under Virginia law, a plaintiff may defeat qualified privilege by showing that a statement was made with actual malice, communicated to third-parties who have no duty or interest in the subject matter, was motivated by personal spite or ill will, included strong or violent language disproportionate to the occasion, or was not made in good faith.||N/A||Under Virginia law, fair report privilege may be defeated where a report is not a “fair and substantially correct” restatement of the public record.||Reporter’s privilege will not apply in criminal cases in the state of Virginia. Additionally, so long as the subpoena requiring a journalist or reporter to testify is issued in good faith and based on a legitimate need of law enforcement, then the privilege will be defeated.|
|Examples||(1) Every proceeding before a competent court or magistrate resulting in a determination, (2) Mechanic’s lien, (3) Third-party statements made during the course of a judicial proceeding.||(1) Fair and substantially accurate reports of public records to which everyone has a right of access, (2) Statements made to interested family members about other members of the family, and (3) Statements made in a report of suspected child abuse.||(1) School personnel reporting on alcohol or drug abuse, (2) Merchant’s privilege to detain suspected shoplifters, (3) Statements made concerning the professional conduct of any member of the bar of Virginia before any bar association or committee thereof.||(1) Reports of judicial proceedings.||(1) Reporter’s privilege has been recognized by a circuit court in a 1995 libel action case.|
Now, let’s turn to some lesser known defenses to defamation lawsuits and claims in the United States and Virginia.
What is the Incremental Harm Doctrine?
Referred to as the “linchpin” of United States defamation and libel law, the incremental harm doctrine is a popular legal defense and doctrine concerning itself with statements which cause no actual harm or damage to a person’s reputation.
Generally, if a defendant is able to prove that a communication or publication would have the same effect on a person’s reputation, had the offensive and challenged excerpt of the statement been removed, then the incremental harm doctrine will likely apply.
Under Virginia defamation law, there are no notable cases concerning themselves with the incremental harm doctrine.
Section 230 of the Communications Decency Act
Simply put, the Communications Decency Act (CDA) is a controversial (and landmark) piece of legislation effectively immunizing websites and Internet Service Providers (ISPs) for information and defamatory posts/comments/content posted by third-parties to their platform.
Think of Section 230 of the Communications Decency Act as a safeguard similar to one which telephone companies enjoy – where they cannot be held liable for the criminal and illegal topics discussed across their lines.
The Libel-Proof Plaintiff
In certain cases, a person, institution, or organization is so highly reviled in their community that a defamatory, slanderous, or libelous statement has near-zero effect on their reputation. Such person is generally referred to as a “libel-proof plaintiff,” as they are effectively immune from libelous and slanderous statements.
Libel-proof plaintiffs are quite rare in 2019. However, courts have found several types of persons to constitute the bulk of libel-proof plaintiff cases over the years. Specifically, libel-proof plaintiffs generally occur in small towns and communities, are a habitual criminal, and have a lengthy rap sheet of past crimes.
There are no notable cases addressing libel-proof plaintiffs in Virginia.
Wire-Service Defense: Rarely Used But Still Relevant
While rarely used and considered somewhat archaic, there still is a time and place for the wire-service defense. Specifically, the wire-service defense may be used as a rebuttal to a defamation claim in cases where a trusted person or organization has used a reputable wire service to send information.
As of date of publish, Virginia has not ruled on any noteworthy cases addressing the wire-service defense.
If you’ve been the victim of libelous and false online attacks and accusations, contact the defamation removal lawyers of Minc Law today to better understand your rights and defendant’s potential defenses to your claim.
At Minc Law, our Cleveland-based team of defamation removal attorneys have proven success removing malicious online comments, posts, and materials from the Internet, so rest assured you’re in good hands when working with us. And, we do it all for a flat, reasonable fee.
Reach out today by calling us at (216) 373-7706, or by filling out our contact form online.
Defamation Removal Tip: If you’ve been the victim of online defamation and malicious cyber attacks, we recommend preserving all relevant evidence and communications. Doing so will help strengthen your defamation or online harassment claim. We also recommend having a trusted family member or friend assist with the documentation process, as to help refute any claims of evidence tampering by the opposing side.
Virginia Defamation Damages
At the very core of every single defamation and libel claim in the U.S. and Virginia is the requirement that a plaintiff prove there was damage to his or her reputation. Damages are typically awarded as compensation and restitution for the harm and injury suffered, and generally quantified in monetary form.
Under Virginia law, defamation damages may be broken down into four fundamental types:
- Presumed Damages,
- Actual Damages,
- Punitive Damages, and
- Nominal Damages.
Defamation Per Se & Presumed Damages
As we noted in Section 1, defamation per se is a legal doctrine which recognizes specific types of statements and communications as so inherently defamatory, that a plaintiff need not prove damages. Such damages are then considered “presumed.”
Under Virginia defamation code and law, in an action brought by a private individual for defamatory words involving no matters of public concern, if the published words are determined by the trial judge to be actionable per se, compensatory damages are then presumed. Great Coastal Express, Inc. v. Ellington, 230 Va. 142, 151 (1985).
Additionally, where a private individual alleges defamation by a news-media defendant involving a matter of public concern, presumed damages cannot be awarded in the absence of actual malice. WJLA-TV v. Levin, 264 Va. 140, 155 (2002).
And, while actual damages are presumed in defamation per se actions, and a plaintiff need not present evidence of damages, a jury’s verdict must still bear a rational relationship to the underlying facts of the case. Cretella v. Kuzminski, 640 F. Supp. 2d 741, 757 (E.D. Va. 2009).
Actual Damages: For Quantifiable Harm
Just as presumed damages go hand in hand with the legal doctrine of defamation per se, actual damages accompany defamation per quod actions. After all, defamation per quod actions require plaintiffs make a showing of actual and quantifiable harm.
Under Virginia law, the terms “actual damages” and “compensatory damages” are synonymous, and include all damages other than punitive damages. News Leader v. Kocen, 173 Va. 95, 108 (1939).
Compensatory damages are allowed as recompense for the injury actually received, and include compensation for:
Evidence of bad character is admissible to diminish damages, since the pain, mortification, and insult are usually in proportion to a person’s good or bad reputation, and the effect of a bad reputation is to reduce the damage inflicted. Stubbs v. Cowden, 179 Va. 190, 200 (1942).
Finally, all defendants may offer an apology in mitigation before the defamation suit, or if there was no opportunity before suit, at the earliest opportunity after the suit was filed. Va. Code Ann. § 8.01-48.
Punitive Damages: Enacted to Punish a Defendant
Also known as “exemplary damages,” punitives damages are simply damages awarded to a plaintiff in order to punish a defendant for extremely wanton, negligent, or malicious conduct. They are most commonly awarded in cases of inappropriate behavior, fraud, and violence.
In every Virginia defamation case, the plaintiff must prove actual malice to recover punitive damages. Great Coastal Express, Inc. v. Ellington, 230 Va. 142, 151 (1985).
And, if the defamation suit is actionable per se, an award of compensatory damages will not be necessary to support an award of punitive damages. Newspaper Publishing Corp. v. Burke, 216 Va. 800, 805 (1976).
Finally, it’s important to keep in mind that the total amount awarded for punitive damages cannot exceed USD $350,000 under Virginia code. Va. Code Ann. § 8.01-38.1.
What are Nominal Damages?
Nominal damages are an award granted by a court after a legal wrong or misconduct has occurred, but where there was absolutely zero financial loss incurred as a result of that wrong/conduct. When nominal damages are awarded, a plaintiff will generally just receive a few dollars.
Under Virginia law, an instruction on nominal damages is permitted where there is no evidence of any particular amount of loss. News Leader v. Kocen, 173 Va. 95, 107–08 (1939).
Defamation Law Fact: While defamation per se generally recognizes four categories of statements as “per se,” it’s extremely important to brush up on your state’s respective requirements. Remember, when bringing a defamation per se claim, a libel or slander plaintiff need not prove damages.
Frequently Asked Defamation Questions (FAQ)
Below are some of the most frequently asked defamation questions about libel and slander laws in both the United States and the state of Virginia.
Q. What has been the effect of the Internet on free speech in Virginia?
A. Virginia does not seem to differentiate between First Amendment protections due to regular speech and anonymous speech on the Internet. “Speech on the [I]nternet is subject to no greater or lesser constitutional protection than speech in more traditional media.” United States v. Henry (In re White), No. 2:07cv342, 2013 U.S. Dist LEXIS 133148 (4th Cir. 2013) (citing Reno v. Am. Civil Liberties Union, 521 U.S. 844, 870 (1997)).
“[T]he Internet, as a forum for speech, is more akin to [a] political rally…than to…targeted mailings, emailings, and telephone calls.” Id.
Q. Are there any protections for anonymous speech in the state of Virginia?
A. Yes. However, Virginia courts have established a test to determine whether a plaintiff may unmask anonymous declarants on the Internet:
A plaintiff seeking to uncover the identity of an anonymous Internet speaker in the Commonwealth of Virginia must show a circuit court that:
- He has given notice of the subpoena to the anonymous communicatory via the Internet Service Provider (ISP);
- Communications made by the anonymous communicator are or may be tortious or illegal, or the plaintiff “has a legitimate, good faith basis to contend that such party is the victim of conduct actionable in the jurisdiction where the suit is filed,” Code § 8.01-407.1(A)(1)(a);
- Other “reasonable efforts to identify the anonymous communicatory have proven fruitless,” Code § 8.01-407.1(A)(1)(b);
- The identity of the anonymous communicator is important, is centrally needed to advance the claim, is related to the claim or defense, or is directly relevant to the claim or defense;
- No motion challenging the viability of the lawsuit is pending; and
- The entity to whom the subpoena is addressed likely has responsive information. Yelp, Inc. v. Hadeed Carpet Cleaning, Inc., 62 Va. App. 678, 699-700 (2014).
Let’s take a look at two past Virginia defamation cases where the First Amendment right to anonymous speech was dealt with.
- In 2008, the Virginia Supreme Court vacated a plaintiff’s convictions for violating a law it held to be overbroad and which infringed on the First Amendment right to anonymous speech on the Internet. Jaynes v. Commonwealth, 276 Va. 443 (2008).
- In 2014, where an attorney sought recovery for defamatory statements made anonymous online, a Virginia court refused to unmask the defendants due to the attorney’s failure to prove element two of Virginia’s unmasking test. Geloo v. Doe, 88 Va. Cir. 379 (2014).
Q. Can a Virginia libel or slander defendant retract, clarify, or correct a past defamatory statement?
A. Under Section 8.01-46 of the Virginia defamation code an apology (under certain circumstances) may mitigate defamation damages.
Q. Does Virginia have any criminal defamation and libel laws in their books?
A. Yes. The following sections of the Virginia Code make the publication of certain types of statements a misdemeanor:
- Derogatory statements affecting banks. 6.1-119.
- Knowingly false statements made to the press. 18.2-209.
- Use of abusive language. 18.2-416.
- Words imputing unchaste acts to a chaste female; insults or words tending to violence or breach of peace, and grossly insulting language to females of good reputation. 18.2-417.
Q. What is a Strategic Lawsuit Against Public Participation? Does Virginia have any Anti-SLAPP protections and legislation in place to protect defendants against such lawsuits?
A. Commonly referred to as “SLAPP suits,” strategic lawsuits against public participation are lawsuits initiated by a party with the overall goal to intimidate, burden, or censor an opposing party. Such suits are typically considered frivolous and a highly unethical legal tactic, which has lead to protective legislation for defendants faced with such suit.
Virginia’s Anti-SLAPP statute provides immunity from civil liability for defamation claims based solely on statements:
- Regarding matters of public concern that would be protected under the First Amendment to the United States Constitution,
- Made at a public hearing before the governing body of any locality or other political subdivision, or the boards, commissions, agencies and authorities thereof, and other governing bodies of any local governmental entity concerning matters properly before such body. Va. Code § 8.01-223.2.
Immunity will not apply when the plaintiff can prove the defendant acted with actual or constructive knowledge of the falsity of their statements, or reckless disregard for the falsity of their statements. Id. However, defendants who successfully dismiss defamation complaints against them under § 8.01-223.2may be entitled to reasonable costs and attorney’s fees. Id.
Let’s now turn to two example cases where a Virginia court has ruled on Anti-SLAPP immunity and motions.
- In early 2019, a Virginia court refused to grant an Anti-SLAPP motion where the plaintiff failed to show actual malice by the media defendant. Steele v. Goodman, No. 3:17cv601, 2019 U.S. Dist. LEXIS 55587, at *42 (E.D. Va. Mar. 31, 2019).
- A Virginia Court held a defendant had no Anti-SLAPP immunity because they ultimately had “constructive knowledge of the falsity of the information pertaining to the named plaintiffs.” LULAC v. Public Interest Legal Found., No. 1:18-cv-00423, 2018 U.S. Dist. LEXIS 136524, at *18 (E.D. Va. Aug. 13, 2018).
Q. Can defamation plaintiffs make a claim anonymously in the state of Virginia?
A. Simply put, yes. A Virginia plaintiff may be allowed to make a defamation claim anonymously when they are able to show special circumstances where their need for anonymity outweighs the public’s interest in knowing the party’s identity and prejudice to the defendant. Am. Online v. Anonymous Publicly Traded Co., 261 Va. 350 (2001).
Q. Are there any particular nuances of Virginia defamation law that I should be aware of?
A. There is one notable important nuance of Virginia defamation law, which concerns itself with the discovery of a plaintiff’s records. Should a defendant be allowed discovery of a plaintiff’s records, and there is potential the defendant will find information embarrassing to the plaintiff, this is still insufficient to show the good cause necessary to obtain a protective order.
“The fact that discovery can only be obtained for the purposes of trial preparation does not necessarily preclude discovered information from being used beyond solely trial preparation.” World Mission Soc’y Church of God v. Colon, 85 Va. Cir. 134 (Cir. Ct. 2012).
Brand Reputation & Management Tip: If you run a business, company, or service and have an online presence, we recommend setting aside a specific amount of your budget towards monitoring your online reputation and brand. Doing so is a great way to gauge the general public’s attitude towards your product or service, and identify intellectual property infringers.
Work With Experienced Internet Defamation Removal Lawyers Today!
If you’re a resident of Virginia, or any other U.S. state, and have been the victim of defamatory online attacks and posts, reach out to the nationally recognized Internet defamation removal attorneys of Minc Law ASAP!
At Minc Law, we know the ins and outs of U.S. defamation law, and support a nearly 100% online defamation takedown and removal rate. Furthermore, we’ve secured the effective removal of over 25,000 websites and pieces of content and litigated in over 22 states and 3 countries. And we do it all for a flat, reasonable fee.
We also have built up an impressive arsenal of legal tactics to offer guaranteed defamation and libel removals from specific websites, so make sure to head on over to our ‘Services’ page to check out the list of websites and online bulletin boards.
Here’s what you can expect when working with the Cleveland-based defamation removal attorneys of Minc Law:
- Utmost Courtesy & Respect: We understand how stressful and overwhelming libelous online attacks and accusations can be, so rest assured we’re here to make the process as smooth as possible. We treat all of our clients with the utmost respect and courtesy. After all, your goals are our goals. Let’s get started today.
- Open Communication & Updates: Some defamation removal attorneys go missing once the takedown process has begun. Not us. At Minc Law, we’ll make sure to keep you in the loop about all important and relevant updates surrounding your takedown or case. We pride ourselves on keeping our clients informed.
- Proven Defamation Removal Results: As noted above, we’ve secured the seamless and effective removal of over 25,000 websites and defamatory pieces of content from the Internet. Minc Law gets results. We’ve worked tirelessly with countless online content managers, website administrators, and third-party arbitration firms to secure swift and permanent removals, so rest assured you’re in good hands when working with us.
What are you waiting for? Online defamation and libelous accusations are like a wildfire. The longer you let them sit and spread, the more damage they will do to both your personal and professional reputation.
Contact us today to schedule your free, initial no-obligation consultation by calling us at (216) 373-7706, or by filling out our contact form online.
We Want to Fight For Your Reputation.