Defamation
Defamation occurs when a false statement is communicated. Slander is an oral defamatory statement and libel is a written defamatory statement. The communication of the false statement is called a “publication”. The publication of the false statement must be made to a third party before the subject defamed by the false statement can sue for damages caused by the publication of the false statement. Virginia, however, does permit recovery for a statement found to be an insult tending to violence and breach of the peace although the statement was only communicated to the person who was the subject of the insult.
Defamation cases are challenging cases to prove and win. Freedom of speech is considered essential to maintaining our democracy, conducting business and the enlightenment and pleasure derived from a free and open exchange of ideas. For this reason, courts and legislatures have erected many rules making recovery of damages for false speech difficult, and in some instances impossible, to avoid chilling the exercise of free speech.
What Must Be Proved in Defamation Cases
What Is A Qualified Privilege?
What Is An Absolute Privilege?
Time Limits on Defamation in Virginia
What if The Defamer Apologizes or Retracts A False Statement?
Internet and Social Media False Statements
False Statements in Credit Reports and Background Checks
Do I Have a Good Defamation Case?
What Must Be Proved in Defamation Case
A person seeking damages for defamation must prove at least that the statement was false and the person who caused the publication of the false statement knew or should have known it was false at the time of publication. In many instances, the victim of defamation must prove more than mere negligence (“should have known”) by the defamer in order to recover. The victim of defamation must prove the defamer knew the statement was false when the statement was published or that it was published with a reckless disregard of its truth or falsity if:
• The defamed person was a public official or figure.
• The defamatory statement concerned a matter of public interest.
• The communication was qualifiedly privileged.
In order to prove defamation, the defamatory statement must be a statement of fact and not opinion. In many instances, it is difficult to predict whether a court will decide if a particular statement is an opinion or a fact.
What Is A Qualified Privilege?
A qualified privilege affords protection to a person publishing a false statement. by requiring proof of more than negligent publication of a false statement. If a person is protected by a qualified privilege, the defamed person must prove that the defamer knew the statement was false when the statement was published or that it was published with a reckless disregard of its truth or falsity.
Qualified privilege has been bestowed on a wide variety of persons who have a legal or moral duty to communicate information or in instances where communication of information will further specific public or societal goals. Determination of whether a false statement is qualifiedly privileged requires analysis of a number of factors including the reason the statement was made, whether the statement was made to persons other than those persons whose interest the qualified privilege was intended to protect and whether the statement’s content extended into extraneous matters.
Absolute Privilege
In a few instances, encouraging persons to communicate information is deemed so vitally important that a defamer may receive complete immunity from liability for making a false statement. A false statement afforded this level of protection is called “absolutely privileged”.
The most common application of absolute privilege is to statements made in judicial proceedings related to the subject matter of the judicial inquiry. The absolute privilege is also extended to press reports of the judicial proceedings if the published report is a correct recounting of what was said in the proceeding.
Time Limits on Defamation in Virginia
A lawsuit seeking damages for defamation must be filed within one year of the publication of the false statement.
What if The Defamer Apologizes or Retracts A False Statement?
If a defamer apologizes for a false statement before commencement of a defamation action or shortly thereafter if there was no earlier opportunity to do so, the apology may mitigate the amount of damages suffered by defamed person. Similarly, publication of a prompt retraction of a false statement in a newspaper or other periodical may mitigate the amount of punitive and non-economic damages but will not reduce the amount of economic damages awarded against the persons responsible for the publication of the false statement.
Internet and Social Media False Statements
The author of a false statement posted on a website or social media platform has the same potential liability as if the author made the false statement orally or in a writing communicated to others. However, websites, blogs and social media platforms such as Facebook and Twitter and others that merely post a statement authored by another person are likely protected from liability under the federal law known as the Communications Decency Act of 1996, 47 U.S.C. § 230.
Section 230 was intended to promote the development of the Internet and prevent state or federal regulation (including defamation lawsuits) from hindering a robust exchange of information and ideas via the Internet. To further this goal, Section 230 shields from liability hosts, bloggers and social media posters who simply disseminate statements made or authored by others.
Whether the poster, platform or host disseminating the false statement is immune from liability may turn on whether the content provided was altered or manipulated by the poster, platform or host sufficiently to become a statement created by the poster, platform or host.
For a discussion of Section 230 and the court opinions applying Section 230, go to the Electronic Frontier Foundation website.
False Statements in Credit Reports and Background Checks
The Federal Fair Credit Reporting Act, 15 U.S.C. § 1681 affords a person the right to file an action in federal court when a credit report or report prepared for employment purposes contains inaccurate information about the person. A person who is a victim of an inaccurate credit or background report may be entitled to recover damages for the harm caused by the inaccurate report and attorney fees and costs.
Do I Have a Good Defamation Case?
The above information constitutes general information about Virginia defamation law. It is not a substitute for a consultation with a lawyer experienced in Virginia defamation law. Due to the complexity of defamation cases and short time limits to file an action seeking a recovery for defamation, a person who believes they have been defamed is encouraged to seek legal advice based upon the specific facts from a lawyer .