Do You Have a Defamation Claim and What Can You do?
You are likely reading this page because you believe that you are the victim of defamation and want to know your legal rights. In other words, another individual has either spoken or written a statement about you publicly that is insulting, false, or harmful to your personal or professional reputation. Well, let me start out by telling you – you have the right to be upset and you are not alone. I regularly speak with individuals who are in your very same shoes. The two most frequent questions I receive from them are “do I have a defamation claim” and “what can I do?” Although Virginia defamation law is highly technical and complex, having an understanding of some basic principles is helpful in setting you along a path to finding answers to such questions.
A starting point is to understand the basic definition of defamation. Virginia, like any other State, recognizes an individual’s right to assert a claim of defamation. At its core, defamation is the “offense of injuring a person’s character, fame, or reputation by false and malicious statements.” Black’s Law Dictionary 375 (5th ed. 1979). Generally speaking, a statement which is merely false, offensive, or unpleasant may not be defamation. See, e.g., Echtenkamp v. Loudoun Cty. Pub. Sch., 263 F. Supp. 2d 1043 (E.D. Va. 2003). Rather, the statement must so harm or injure an individual’s reputation that it lowers him or her in the eyes of the community and deters others from associating or dealing with the individual. Certain statements, referred to as “defamation per se,” accomplish this end in and of themselves. Echtenkamp, supra. A defamation per se statement “(1) imputes the commission of a crime of moral turpitude for which a party may be convicted, (ii) imputes that the person is infected with a contagious disease which would exclude the person from society, (iii) imputes an unfitness to perform the duties of a job or lack of integrity in the performance of duties, or (iv) prejudices the party in her profession or trade.” Id. At the end of the day, a statement must carry a sting to be considered defamation.
But, even sting alone may not be enough for a statement to be defamatory. That is, the concept of fact versus opinion also plays a role in defining what is and what is not defamation. The First Amendment to the United States Constitution protects an individual’s right to free speech, and a component of that speech is the right of expression of one’s opinion or personal viewpoint. Because an expression of one’s opinion or personal viewpoint is constitutionally protected and, more specifically here, incapable of being proven false, it cannot constitute defamation as a matter of law. So, for example, a statement by John that “Jane is crooked” without more is likely a protected opinion statement, whereas his statement that “Jane overbilled her client by $2,000.00 yesterday,” if false, is defamatory. Indeed, Jane could prove she rendered the services for which she billed her client and no overbilling or other deceptive or fraudulent practice occurred, as John’s statement implied. That Jane is “crooked” without more is merely John’s opinion or personal viewpoint of Jane. If the statement is an opinion and subject to disagreeing viewpoints or is relative in nature, then it is not defamation.
Just this Summer, the Supreme Court of Virginia issued two decisions in the special education context, reaffirming the importance the concept of fact versus opinion plays in defamation cases. In the first decision, Sroufe v. Waldron, No. 181014 (Va. S. Ct. June 27, 2019), the Supreme Court reversed a trial court’s judgment and a $500,000 jury verdict in favor of a public employee, holding that the following statements by the employee’s supervisor in the course of a disciplinary reassignment were protected opinion: “You failed to ensure that the [IEP] Teams understand the [Virginia Alternative Assessment Program (“VAAP”)] participation criteria and apply them appropriately when considering students with disabilities for the VAAP. Your actions will result in students being required to take [SOL] assessments who, under a correct interpretation of the criteria, should not have been required to do so.” In holding that this statement, which local media subsequently published, was the supervisor’s opinion, the Supreme Court explained, in part, that the statement “was relative in nature and depended largely on his own, independent viewpoint.” Thus, the supervisor had not defamed the employee. This decision is further interesting for the fact that this appeal was decided more than four years after the statement was first made.
In a second decision, the Supreme Court reversed a trial court’s decision and $90,000 jury verdict in favor of a special education advocate, whom a client had accused of “fraudulent billing” practices. Handberg v. Goldberg, No. 170964 (Va. S. Ct. Aug. 22, 2019). In so doing, the Supreme Court held that the trial court erred in permitting the jury to consider both factually defamatory statements and protected opinion statements contained in a single email without an appropriate limiting instruction to the jury as to the nature of each statement. As an example, the jury improperly considered the factually defamatory statement that the client had “terminated [the advocate’s] services for fraudulent billing” in conjunction with the non-defamatory opinion statement that he “did not think that [he] could trust the motives of a person that was so opportunistic and aggressive about pursuing money and was not a person that [he] could trust in advocating services for [his] son.” The result was that the jury deemed both statements defamatory and erroneously awarded damages on that basis. These two recent decisions collectively illustrate the importance of reviewing statements carefully in the context of defamation, as the consequences otherwise can be quite significant and costly.
Even if a statement is factually false and stinging, it still may not be defamation. Specifically, to be defamation, a statement generally must also be communicated or published to a third individual. In the decisions above, the statements were communicated or published in such a manner, including to the media (Sroufe) and to other school officials (Handberg). As a further example, if our fictional John merely wrote the statement about Jane in his journal and no other individual read or saw it, then it would not be defamation. In contrast, if John posted the statement about Jane online on a Yelp review, then it is defamation. This is because other individuals can read and see the statement. On this note, it is important to remember that a defamatory statement can occur in any medium, including online, in a book, magazine, or newspaper, or on the radio or television. A defamatory statement can also occur in any walk of life, including but not limited to in the course of business, at school, at work, or even inside the grocery store. As long as the statement carries a factually false sting, is communicated to a third party, and is communicated with the necessary intent (e.g., recklessly or in disregard of the truth), then an individual may have a defamation claim under Virginia law.
Assuming an individual has identified a defamatory statement to support a legal claim, then the second question arises, “what can I do?” In short, an individual is not without options in Virginia. An individual can send a cease and desist letter to the offending individual, perhaps demanding he or she cease making any further statements, retract or correct the statement, or erase or remove the statement from the relevant medium altogether. Additionally, an individual who suffers damages, presumed or otherwise, as a result of a defamatory statement can file a civil lawsuit. Importantly, the individual must do so within one year of the defamatory statement’s communication or publication or, if not, the statute of limitations will forever bar it. If a lawsuit is the chosen route, then an individual must be aware of defamation pleading standards, privilege defenses, and other pitfalls, all of which are beyond the scope of this general guide.
So, I often tell individuals that their second question of “what can I do” is really more about “what should I do?” You do not need an attorney to pursue your legal rights. Yet, it is advisable. If you choose to have an attorney, you should first request the attorney examine the statement in question to determine whether it may support a claim of defamation. The basic principles above are not intended as and should not be construed as legal advice or to be exhaustive and certainly cannot replace an attorney’s experienced and thorough examination. As the examples above illustrate, Virginia defamation law is highly technical and complex and also has many nuances and pitfalls. Second, you and your attorney can determine the best course of action for your unique circumstances. One size does not fit all when asserting your legal rights. In the end, you should be advised.
You have a right to your good name and reputation. If you believe you have been defamed, then please contact me right away for a knowledgeable and experienced review of your claim and to discuss your legal rights. At Simopoulos Law, your rights are our mission.