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Defamation


Virginia Defamation Law

Defamation includes both written false statements (libel) and oral false statements (slander). Virginia law does not treat oral and written false statements differently and they all fall under the single category of defamation.

MUST BE FALSE STATEMENT OF FACT RATHER THAN OPINION

In order to have a claim for defamation, the statement at issue must be false. For this reason, statements of opinion can never be the subject of a defamation lawsuit. So, for example, the statement that John Smith is a dishonest person is a statement of opinion and is too broad and general to be the subject of a defamation lawsuit. By contrast, the statement that John Smith stole $10,000 from me is a statement of fact that is capable of being proved true or false. For that reason, if the statement that John stole $10,000 is false, then that statement could be the subject of a defamation claim.

MUST BE DEFAMATORY

Besides the requirement that the statement at issue must be false, it must also be defamatory. That is, it must tend to harm one’s reputation. For example, the statement that John Smith is a drug dealer would certainly harm John’s reputation. However, the statement that John Smith is a florist, even if false, would not tend to damage John’s reputation and is therefore not defamatory and could not serve as the basis for a defamation lawsuit.

PUBLICATION – STATEMENT MUST HAVE BEEN READ OR HEARD BY A THIRD PARTY

It is important to distinguish between false statement that are mere insults and those that are defamatory. If John writes a letter to Sue and states that Sue is a prostitute, that would obviously be very insulting to Sue. But unless John communicated that statement either orally or in writing to some other person (for example, Bob), the statement is merely an insult. To be the subject of a defamation lawsuit the false statement must harm the reputation of the target of the statement. It can only harm the reputation if it is transmitted to a third person. If it is transmitted only to the target of the statement, it is an insult and generally, the law does not provide a remedy for mere insults.

MUST CAUSE HARM TO REPUTATION

The false and defamatory statement at issue must actually harm the reputation of the subject of the statement in order for him to maintain a lawsuit for defamation. The burden is on the plaintiff (the person bringing the lawsuit) to prove those damages. This can often be difficult to do. However, if the defamatory statement was communicated to an employer and as a consequence the person lost his job, then he would have a viable claim for lost wages, among other things.

In addition, certain categories of statements are considered defamatory per se. That is, by their very nature they are deemed to be damaging to one’s reputation and no proof of actual monetary loss is required. If a false statement is made that accuses someone of engaging in criminal activity, or if the statement impugns the person’s ability to perform his occupation, trade or profession, or If it falsely claims that the person has a communicable disease (such as AIDS) that would tend to make other people want to avoid that person, or if it claims that a person is a prostitute, those statements are defamatory per se and a plaintiff can recover damages (that a judge or jury will determine) without proving that he suffered any economic losses.

Other statements that do not fall within those categories of defamation per se may still be defamatory but the additional burden is placed on the plaintiff to prove the extent of his economic or other losses (such as shame, humiliation, etc.)

Besides economic losses (from the loss of a job, for example), a plaintiff who successfully brings a defamation claim can recover damages for harm to reputation, shame and humiliation and if the statement was made deliberately with knowledge of its falsity, then the plaintiff can recover punitive damages designed to punish the person who made the statement. In Virginia, punitive damages are limited by statute to $350,000. The other elements of damages are not limited and successful plaintiffs have won millions of dollars to restore the damage done to their reputations.

DEFAMATION BY IMPLICATION

Finally, it is worth noting that some statements may not on their face appear defamatory but by inserting some critical missing information they become defamatory. For example, if I say that Susan lives at 123 Main Street and that statement is false, it si not ordinarily defamatory. But suppose that statement appears in an article that I wrote in which 123 Main Street was identified as a house of prostitution. That obviously changes the meaning of my statement concerning Susan’s residence and makes my statement defamatory by implication. If it is false, then Susan could maintain an action against me for defamation.