22 Jun Virginia: Special Cases – a Lawyer’s Defamation
On June 4, 2015, the Virginia Supreme Court issued Schaecher v. Bouffault, No. 141480, affirming a Clarke County dismissal with prejudice of Plaintiff’s Amended Complaint. On the same day, the Virginia Supreme Court hailed Schaecher as providing “a thorough discussion of the elements of defamation in Virginia, including the role of innuendo when the allegedly defamatory meaning of the statement is not apparent on its face.” Pendleton v. Newsome, No. 141116 at 11 n.4.
“Virginia makes no distinction between actions for libel and slander.” observed Schaecher. “In Virginia, when a plaintiff alleges defamation by publication, the elements are (1) publication of (2) an actionable statement with (3) the requisite intent.” No. 141480 at 5 (internal quotations omitted).
“An ‘actionable’ statement is both false and defamatory,” stated Schaecher. “Defamatory words are those ‘tend[ing] 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’.” Id.
“A false statement must have the requisite defamatory ‘sting’ to one’s reputation.”
Schaecher explained: “Characterizing the level of harm to one’s reputation required for defamatory ‘sting’ we have stated that defamatory language ‘tends to injure one’s reputation in the common estimation of mankind, to throw contumely, shame, or disgrace upon him, or which tends to hold him up to scorn, ridicule, or contempt, or which is calculated to render him infamous, odious, or ridiculous;’ *** while language that is insulting, offensive, or otherwise inappropriate, but constitutes no more than ‘rhetorical hyperbole’ is not defamatory.” Id. at 6-7.
“In evaluating whether language is actionable, we take all inferences in favor of the plaintiff, but such inferences cannot rise above the language of the documents or statements themselves.” Id. at 7. Schaecher elaborated: “To determine whether a statement can be reasonably understood as stating or implying actual facts, whether those statements are verifiable, and whether they are reasonably capable of defamatory meaning, we must examine them in context”. Id. at 8.
“[A] court must decide as a threshold matter of law whether a statement is reasonably capable of defamatory meaning before allowing the matter to be presented to a finder of fact.” Id. at 8-9.
“The mere implication that one might be in violation of an easement [or a covenant restriction], absent more – such as inflammatory language or context to suggest that the statement causes particular harm to one’s reputation – does not rise to the level of defamation. It does not ‘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,’ such as by making the plaintiff appear odious, infamous, or ridiculous, or subjecting her to contempt, scorn, shame, or disgrace.” Id. at 10-12.
“Where the face of the statement do not reasonably convey defamatory ‘sting’,” the Court must turn to innuendo in the pleadings. Id. at 12. Schaecher emphasized that “innuendo may not extend behind the meaning of the words in the statement.” Id.
“For a statement to be actionable, it must ‘have a provably false factual connotation and thus be capable of being proven true or false’. Schaecher underscored: “The verifiability of the statement in question is a minimum threshold issue. If the defendant’s words cannot be described as either true or false, they are not actionable.” Id. at 16. (citations omitted).
“A pleading for defamation must allege or otherwise make apparent on the face of the pleading that the alleged defamatory statements are ‘of and concerning’ the plaintiff.” Id. at 17. Schaecher continued, “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,” i.e., the “words written or spoken [must be] in direct relation to the trade or business of the corporation”. Id. at 17-18.
“Where a plaintiff does not prevail on a claim of defamation per se, and has not alleged or stated proof of special damages, the plaintiff may not proceed,” declared Schaecher. Id. at 18. “Corporate owners generally cannot personally pursue an action for defamation of their corporation, because the corporate entity is ‘itself the only person entitled to recover for injuries to its business, profits or property’.” Id. at 18-19.
“Libelous aspersions impugning honesty have long been accepted in the Commonwealth as potentially defamatory in nature [; and the] Supreme Court of the United States has also explained that, in the proper context, an accusation that one is a liar is grounds for defamation.” Schaecher clarified: “As with all evaluations of defamatory statements, however, context is of the utmost importance: Reputation must be affected to a magnitude sufficient to render one odious, infamous, or ridiculous, or subject to disgrace, shame, scorn, or contempt.” Id. at 20.
Although a characterization may be unpleasant, “merely offensive or unpleasant statements are not defamatory.” Id. at 21. However, delineated Schaecher, if the “statement can reasonably be understood as an aspersion cast on Plaintiff’s reputation and character – the perception that one is deliberately lying and manipulating facts throughout a governmental process is sufficiently damaging to one’s reputation so as to deter others from associating with her and render her contemptible in the estimation of the community” – [it] has the requisite defamatory ‘sting’.” Id. at 22.
“Whether an alleged defamatory statement contains a provably false factual connotation or is a ‘pure expression of opinion’ is a question of law that we examine de novo,” pronounced Schaecher. The question is not “whether the alleged defamatory statement is true or false, but whether it is capable of being proved true or false.” Id. at 23.
Yet “it is not necessary to make a writing libelous that the imputations should be made in the form of positive assertion. Therefore, ‘simply couching . . . statements in terms of opinion does not dispel factual implications’.” Id.
“The standard previously articulated by this Court is whether a statement can be ‘reasonably understood . . . to convey a false representation of fact’,” continued Schaecher. Id. at 23. “Accordingly, we have held that clear ‘rhetorical hyperbole’ is not defamatory [, because the] “relative nature of such opinions is obvious to anyone who hears them.” Id. at 24. “The same cannot be said for an accusation of lying and manipulating facts: such statements can imply underlying facts, and ‘opinions may be actionable where they imply an assertion of objective fact’.” Id.
“Thus, we consider whether the facts underlying [the] statement might be incorrect or incomplete, or whether . . . assessment of them is erroneous so as to imply a false assertion of fact. In doing so, we must continue to consider the context and the audience,” stated Schaecher. Id. at 24-25.
“In exercising our gatekeeper function, we must therefore conclude that a reasonable person in [the statement recipients’] positions would have perceived the accusation as a pure opinion on the part of [the maker] based upon her subjective understanding of the underlying scenario and not upon an implied factual predicate of which they were unaware.” Id. at 27. Schaecher concluded: “Thus, because of [the statement recipients’] knowledge of the factual basis for [the maker’s] statement, in the absence of a claim that the stated underlying facts themselves were false and defamatory, and because the context of the email and the positions of [the statement recipients’] would allow them to reasonably conclude that [the maker’s] statement was purely her own subjective analysis, the statement is protected by the First Amendment and is not actionable.” Id. at 27-28.
Finally, Schaecher held that Plaintiff failed to plead sufficiently a cause of action for tortious interference with contractual relations – specifically, the required third element, intentional interference inducing or causing a breach or termination of the relationship or expectancy. Id. at 28. “A court considering a demurrer may ignore a party’s factual allegations contradicted by the terms of authentic, unambiguous documents that properly are part of the pleadings.” Id. at 30.