Virginia Business Litigation Lawyer Blog

When SolAVerde's attorney spoke to the media about his client's defamation claims against the Town of Front Royal and certain councilmen, he sounded pretty confident. The court, however, disagreed with his arguments and dismissed the Town from the lawsuit, finding it to be immune. The court also dismissed the defamation claims against the other defendants, but left the door open for SolAVerde, a Virginia solar energy company, to amend its claims against them.

The Complaint alleged that the defendants, in effect, accused the owners of SolAVerde of offering a bribe to public officials in connection with the bidding on a contract for a solar energy processing and production facility. According to plaintiff, a member of the Front Royal town council, whom they were unable to identify specifically, leaked a memorandum to the news media that raised the question of whether certain proposed monetary incentives were actually bribes. The plaintiffs sought $30 million in reputational damages.

However, in a May 26, 2011, opinion, Judge Paul Peatross Jr., sitting by designation in the Warren County court, dismissed the defamation claim. He found that the town was entitled to sovereign immunity because whatever the council members had done in connection with the bids and the possible contract, they were making a governmental decision. "The doctrine of sovereign immunity protects municipalities from tort liability arising out of the exercise of governmental functions," he wrote. Judge Peatross concluded that the acts alleged by the plaintiffs, including the alleged leak of the document, "amount to a governmental function by the Town of Front Royal acting in its legislative capacity regarding the consideration of solar power for the Town of Front Royal," and that the town is thus immune from defamation liability.

Regarding the defamation claims against the other defendants, the judge dismissed those too. Citing the Model Jury Instructions, he recited the elements of a defamation claim as "(1) a defendant made a statement of fact; (2) about the plaintiff; (3) that was heard or seen by someone other than the plaintiff; (4) which statement was false; and the defendant knew the statement was false or, believing it to be true, lacked reasonable grounds for such belief or acted negligently to ascertain the facts on which the statement was based." It was not necessary to get beyond the first element, as the court found no allegation of a factual assertion. The statement at issue was a legal question posed to the Town Attorney, not a statement of fact. As such, it was insufficient to state a proper defamation claim.

Virginia courts have long held that statements made in connection with judicial proceedings are entitled to absolute protection from defamation liability. To encourage truthfulness in litigation, Virginia public policy has extended an absolute privilege to statements made in a party's pleadings, statements made during depositions, and to the testimony of witnesses at trial, provided the statements are generally relevant to the proceeding. But what protection, if any, should be afforded to pre-litigation statements, such as those contained in a demand letter to a prospective defendant?

Fairfax Circuit Court Judge R. Terrence Ney recently had the opportunity to consider whether a defamation claim could be based on allegedly defamatory statements made in a draft complaint forwarded to a small group of prospective defendants for purposes of exploring settlement opportunities prior to filing suit. The issue has not yet been decided by the Virginia Supreme Court, and is particularly interesting because the ethical rules that prohibit lawyers from making frivolous claims arguably do not apply to statements made outside a judicial proceeding. As a result, when drafting pre-litigation demand letters, many lawyers are far less assiduous in their fact-checking than they would be when filing an actual pleading with the court.

In a sense, the situation is similar to the question of whether to grant a privilege to a law firm's statements in a press release announcing a lawsuit. If a complaint contains defamatory statements, they would not be actionable, even if made with knowledge of their falsity, due to the absolute privilege for statements made in judicial proceedings. A press release discussing the lawsuit, however, is made outside the judicial proceeding, so it does not enjoy the same level of protection. Like a press release, a demand letter containing a draft complaint is very closely related to a judicial proceeding, or at least a contemplated one, but is not part of the proceeding itself.

Judge Ney found that the threatened complaint was substantially similar to the actual complaint filed eight days later and that it was published only to the prospective defendants having a legitimate interest in the matter. Consequently, he held that the content of the draft complaint was entitled to absolute protection and he sustained the defendants' demurrer.

Judge Ney ultimately adopted the approach of the Restatement (Second) of Torts Section 586, which states that "An attorney at law is absolutely privileged to publish defamatory matter concerning another in communications preliminary to a proposed judicial proceeding...if he [sic] has some relation to the proceeding." Building on that foundation, the court followed the two-part test established by an earlier circuit court case from Norfolk, which provided a two-step process to determine whether pre-litigation statements should be afforded an absolute privilege: (1) the court should determine whether the statement was made "preliminary to a proposed judicial proceeding, or in the institution of, or during the course and as a part of a judicial proceeding"; and (2) if so, it should then determine whether the statement "has some relation to a proceeding that is contemplated in good faith and under serious consideration."

This is a good rule, as it not only provides protection for statements made in connection with contemplated litigation, but also because it will discourage the practice of sending frivolous demand letters threatening litigation the sender has no intention of ever bringing before a court.

Consumer review sites continue to grow in popularity. Sites like Angie's List, Avvo, and Yelp (to name but a few) allow people to post their experiences with lawyers, doctors, hairdressers, restaurants, roofers, and just about anyone else, and assign a rating to the service provider they used. When used honestly, these sites can provide a benefit to consumers. But they can also provide a mechanism for bogus reviews intended to maliciously destroy a business's reputation. Here in Virginia, negative reviews are often the subject of defamation lawsuits.

In general, the First Amendment protects expressions of opinions on these sites. All legitimate reviews, both positive and negative, can help consumers come to well-informed conclusions. Negative reviews, however, cross the line if they include false statements of fact. Consumers are free to express unfavorable opinions regarding their experiences with a service provider, but the First Amendment does not allow them to defame the service provider by posting false information.

A Texas lawyer recently filed a defamation action, claiming that a negative review that he received on Citysearch.com was not only derogatory but false and was the result of a conspiracy to defame him, evidently in retaliation for his decision to fire a paralegal at his law firm. Attorney Michael Weston sued his former paralegal and the man believed to be her husband.

Weston says in his complaint that he fired the paralegal for insubordination on November 6, 2010, after she had been on the job less than a month. A couple of weeks later, he claims, the paralegal and/or her husband wrote a review on Citysearch.com, claiming to be former clients of the firm and stating that they had "found him to be condescending to my situation and cold in demeanor," adding that "if you are looking for a factory that turns out debt settlements then this attorney is for you."

Weston claims in his lawsuit that the statements were false in that neither his paralegal nor husband had ever been clients of his law firm. He contends that he lost business because of the review, and he is seeking lost profits of $250,000 and reputational damages of $1 million.

Did an Associated Press reporter commit a foul against an NBA referee earlier this year by defaming him on Twitter during a league game? On March 14, 2011, National Basketball Association official Bill Spooner filed a federal defamation case against Associated Press sports beat reporter Jon Krawczynski for a brief item that Krawczynski wrote on his Twitter account that suggested Spooner was officiating a game dishonestly. During an NBA game between the Minnesota Timberwolves and the Houston Rockets on January 24, 2011, Krawczynski tweeted (twote?) that Spooner told Minnesota coach Kurt Rambis after an allegedly bad call against a Minnesota player that Rambis would "get it back," and that Spooner went on to compensate for the incorrect call with a "make-up" call against Houston.

Spooner says that although he had a brief verbal exchange with Rambis about the foul call, he said nothing to the coach about giving anything back to the Timberwolves. His lawsuit, filed in the U.S. District Court for the District of Minnesota, says Krawczynski defamed him by telling Krawczynski's Twitter followers in effect that Spooner had engaged in a "form of game fixing." Spooner discusses in his complaint that the NBA was recently caught up in a controversy involving former ref Tim Donaghy, who pleaded guilty in federal court in 2007 after being accused of betting on games that he officiated.

The NBA itself discouraged the lawsuit, although it doesn't believe Spooner actually cheated either. According to a league spokesman, "We investigated the content of the tweet when it appeared, found it to be without substance, and informed Mr. Spooner that we considered the matter closed. We subsequently advised Mr. Spooner's lawyer that we did not think suing a journalist over an incorrect tweet would be productive."

The lawsuit raises plenty of interesting questions. First, is Spooner a "public figure" for libel purposes, or, alternatively, did Krawczynski's tweet implicate a matter of "public concern"? Spooner's defamation lawyers clearly don't want him to be treated as a public figure, cognizant of the higher hurdles public-figure plaintiffs must overcome in defamation actions. They make a point of stating in the complaint that Spooner "does not grant media interviews" and that he "eschews contact with the public." If the court treats Spooner as a public figure, the First Amendment would protect Krawczynski's statement unless it was made with knowledge that it was false, or with reckless disregard for its truth or falsity.

Did Spooner suffer any harm from the tweet? The NBA says it disregarded the statement. Moreover, Twitter is an ephemeral medium, and Krawczynski had only about 2,000 followers at the time. Was there any measurable damage to Spooner's reputation? Some say the lawsuit is ill-advised due to the lack of harm. But you know what? If what Spooner alleges is true, this is a solid case. Defamation law does not require him to prove actual damage to his reputation. In circumstances such as this, where an allegedly false statement relates directly to a plaintiff's fitness to perform the duties of his job, harm to reputation is presumed and requires no proof.

It's not only basketball fans who will be watching to see how this one turns out.

Kids these days. The use of fake IDs by teens is nothing new, but when that ID contains the name of a real person, and the imposter goes on to do naughty things while posing as someone else, the law of defamation can come into play. And if you're inclined to post a YouTube video of that identity thief engaged in acts of questionable moral character, you'd better conduct some due diligence to ensure you don't destroy someone's reputation. That's a lesson that Joe Francis, the entrepreneur behind the risqué "Girls Gone Wild" videos, may have just learned as a result of a $3 million default judgment entered against him earlier this month in New Jersey federal court.

In a complicated scenario typical of the Internet age, in 2008 Francis wanted to take advantage of that year's scandal involving New York Gov. Eliot Spitzer and a prostitute named Ashley Alexandra Dupre. He offered Dupre $1 million to appear in a magazine spread and participate in a promotional tour for "Girls Gone Wild," but withdrew his offer when he found that he already had useful footage of Dupre from five years before, when she was 17 years old.

After Francis used the footage, Dupre sued him, claiming that she was underage and did not understand the release she had signed. However, Francis was able to come up with a video of Dupre providing consent to appear in "Girls Gone Wild," stating that she was 18, and showing the driver's license of another woman who was of legal age. Dupre then dropped her suit against Francis.

But Francis's legal troubles weren't over. The other woman whose driver's license was held aloft by Dupre was Amber Arpaio, who was in no way involved in "Girls Gone Wild." Arpaio sued Francis, Dupre, and the companies that produce the DVDs for defamation, invasion of privacy, misappropriation of her name, and conspiracy.

The judge wrote that a person is liable for defamation if he makes a statement regarding a private person (as opposed to a public figure) with knowledge that the statement is false, reckless disregard of its truth or falsity, or negligence by failing to determine the truth or falsity of the statement. He noted that Arpaio had alleged that the defendants produced a video in which Dupre represents herself as Arpaio, and thus by implication states that Arpaio is affiliated with the "Girls Gone Wild" franchise, a false statement. Arpaio also alleged that the defendants knew the statement was false or acted in reckless disregard of whether it was true or false. The court therefore found it appropriate to enter a default judgment.

As for arriving at the $3 million figure, the judge referred to Arpaio's "distress from being mistaken as somehow affiliated with Dupre or 'Girls Gone Wild' " as well as her fear that she might lose job opportunities because a prospective employer would search for her name on the Internet and find her ID being brandished by Dupre. He also noted that if she were to have children, they too might suffer emotional damage from being exposed to the material. "Given the unique nature of the Internet," the plaintiff's Internet expert wrote, "this branding is for life."

Last summer, United States Department of Agriculture official Shirley Sherrod was forced to resign after conservative activist Andrew Breitbart posted online a speech that she had made 23 years before, when she worked for a nonprofit organization. The video that Breitbart posted supposedly showed that Sherrod, who is African American, had engaged in racial discrimination against a white farmer who needed financial assistance. It soon emerged, however, that the video clip that Breitbart placed online was significantly edited, and that in full context, Sherrod emerged as a supporter of equal opportunity rather than as a racist. After all that background was revealed, President Obama took the unusual step of formally and publicly apologizing to her. She was offered her job back, but she declined the offer. Instead, she hired a team of preeminent defamation attorneys to take Mr. Breitbart to court.

On February 11, 2011, Sherrod filed a defamation suit in D.C. Superior Court against Breitbart and two alleged accomplices, alleging that the depiction of her as a racist had caused her financial losses, physical symptoms, and "irreparable reputation and career damage." Sherrod is seeking compensatory and punitive damages as well as a court order that Breitbart remove the offending material from his blog. Breitbart has not yet formally responded to the lawsuit, but he did say in a statement that he "categorically rejects the transparent effort to chill his constitutionally protected free speech."

Defamation suits against public figures are never easy. The First Amendment has been interpreted by the Supreme Court for several decades to give a very wide berth to people who criticize public officials or discuss matters of public concern. In general, celebrities or other public figures who sue for defamation cannot win unless they can show that the defendant made the offending statement with "actual malice," which essentially amounts to knowledge that the defamatory statements were false, or reckless disregard for their truth or falsity.

Sherrod's complaint makes clear that she does, in fact, intend to prove that Breitbart made the defamatory statements with actual malice: either that he knew when he posted the speech online that Sherrod had done nothing racist and that the version he posted was grossly manipulated or distorted, or that he recklessly disregarded that possibility.

For example, she wrote in the complaint that Breitbart and his associates "acted with actual malice, reckless intent and gross indifference to the false and misleading nature of the edited clip posted on his blog and the effects that the posting would have on Mrs. Sherrod." She also wrote that the defendants "acted with actual malice in altering the video -- that is, acted with actual knowledge of the falsity of the speech or reckless disregard of it." Sherrod will have to prove those allegations if she hopes to prevail.

It doesn't take a defamation expert to see the flaws in the $2 million libel lawsuit filed this week by Redskins owner Dan Snyder against the Washington City Paper. Mr. Snyder took offense at an article titled, "The Cranky Redskins Fan's Guide to Dan Snyder: From A to Z (for Zorn), an Encyclopedia of the Owner's Many Failings," which contains a detailed list of reasons the author considered him a bad owner. Mr. Snyder also disapproved of an image of him, published with the article in question, on which someone had doodled devil horns and a mustache, which Mr. Snyder deemed "an anti-Semitic caricature of himself" which "forced" him to file the lawsuit. Talk about thin skin.

First of all, how ironic is it that Mr. Snyder claims he was forced to bring this lawsuit to protect his reputation and good name, and yet by virtue of suing the newspaper, he has stoked the interest of the media and triggered widespread public scrutiny into his prior activities, vastly increasing the number of people who will seek out and read The Cranky Redskins Fan's Guide to Dan Snyder? Personally, I'm not a regular reader of the Washington City Paper and would never have known about the alleged defamatory statements had Mr. Snyder not called my attention to them by suing the paper. Mr. Snyder and his lawyers have alerted the otherwise complacent populace to a long list of alleged bad acts by the Redskins owner. Even if he wins the case, will he really have done himself and his reputation any favors by suing an outspoken critic?

But he won't win. As I explained in an earlier blog post, not just any hurtful or offensive comment will constitute libel or slander upon which a plaintiff could successfully sue for millions of dollars. Defamation liability requires the publication of a false factual statement that concerns and harms the plaintiff or the plaintiff's reputation. Statements of opinion, regardless of how unfavorable the opinion, are not actionable. Thus, calling Mr. Snyder a failure, likening him to the devil, and referring to the "stain" he supposedly left on the Redskins are all constitutionally protected as free speech.

Snyder's lawyers are well aware of that restriction, and therefore focus their allegations on certain statements in the article that could be more easily interpreted as factual allegations. Namely, that "Dan Snyder...got caught forging names as a telemarketer with Snyder Communications;" that he caused Agent Orange to be used to destroy trees "protected by the National Park Service" on "federally protected lands;" that Mr. Snyder bragged that his wealth came from diabetes and cancer victims; and that Mr. Snyder was "tossed off' the Six Flags' board of directors. According to Huffington Post reporter Jason Linkins, these allegations are all demonstrably true or were intended as metaphors with substantial truth to them. If the statements are true, they are not defamatory.

Mr. Snyder has an even higher hurdle to climb if we wants to recover damages against the Washington City Paper: as a widely known public figure, Mr. Snyder will need to prove not only that the article contained false statements, but that the Washington City Paper acted with "constitutional malice": that it knew the statements were false or published the statements with reckless disregard of whether the statements were true or false.

If he fails to prove, with clear and convincing evidence, that the newspaper published false factual statements (not just opinions) about him, and that they did so with malice, he will lose the case. And while losing the case would not necessarily mean that the statements about Mr. Snyder's alleged activities are true, what will public perception be?

In Virginia, as in other states, potentially defamatory statements made in official government proceedings receive protection from defamation claims. But some such statements get the benefit of absolute privilege, which means that even a knowingly false statement can't be the basis of liability, while a larger category of statements receive only a qualified privilege. A qualified privilege gives the plaintiff an opportunity to show that the statement was made with malice -- and to recover damages if he or she can prove that it was.

In Small v. Nogiec, the Supreme Court of Virginia examined remarks made by a county assistant administrator during a meeting of the Board of Supervisors of Isle of Wight County, and concluded that only a qualified privilege applies to the statements since they were not made in a legislative context. The court therefore unanimously upheld a jury verdict for the plaintiff.

In March 2007, Alan Nogiec retired from his job as the county's director of Parks and Recreation. A few months before he retired, the county's museum was damaged by heavy rains. In May 2007, Assistant County Administrator Patrick Small gave a report at a board meeting about efforts being undertaken to repair the museum. He said that before the storm, information about the likelihood of flooding "had been suppressed" by the parks director and that this "borders on negligence in my opinion."

Nogiec sued Small, claiming that these statements were defamatory and were made with malice. A jury returned a $150,000 verdict for Nogiec on this claim. Small appealed, asserting that his statements were absolutely privileged since he was testifying at a meeting of a county board.

The Supreme Court of Virginia unanimously upheld the jury verdict. It ruled that even assuming that absolute privilege applies to bodies such as the board of supervisors and not only to the state's General Assembly, it applies only to actual legislative work by those boards and committees and not to statements that don't concern the creation of legislation.

Here, the court found that the evidence showed that the board was acting in a supervisory or administrative capacity, not in a legislative capacity. It had convened to receive a report on the damage to the museum and the efforts to repair it, not to create legislation. Since the board was not acting as a legislative body, Small's statements were entitled only to a qualified privilege, not an absolute one. Nogiec was entitled to submit to the jury the issue of whether the statements were made with malice, and the jury found in his favor. Thus the Virginia Supreme Court upheld the jury verdict.

The court noted that it was balancing the importance of permitting people to speak freely in governmental proceedings against the right of an individual to enjoy his reputation free of defamatory attacks. Accordingly, people who make potentially defamatory remarks need understand that in many contexts, their statements won't be fully privileged and that a jury may one day be sitting in judgment of them.

Statements made by litigants and their attorneys in judicial proceedings cannot form the basis for a defamation action because they are protected by an absolute privilege. But what if an attorney, desirous of increased media exposure, takes copies of what might otherwise be considered slanderous statements and forwards them to the media? Do statements made in judicial proceedings lose their privileged status when republished to third parties? The answer, according to Norfolk judge Charles E. Poston, is that it depends on whether the attorney acted with malice.

In D'Alfio v. Theuer, a sea captain sued a lawyer who had filed at least one lawsuit against him on behalf of a client claiming employment discrimination. The lawsuit, the sea captain contended, contained numerous false and defamatory allegations, such as that the captain had ordered a seaman on his ship to be handcuffed in retaliation for speaking to a newspaper reporter and that he had threatened to put him in a straightjacket. What the captain found particularly troublesome, however, was that the seaman's lawyer faxed a copy of the lawsuit to the media. He sued the lawyer for defamation.

The lawyer filed a "demurrer" (essentially a motion to dismiss the complaint) on the ground that the allegedly defamatory statements were protected by absolute or qualified privilege. Judge Poston overruled the demurrer and permitted the lawsuit to proceed.

An absolute privilege provides complete immunity from liability, even if the communication is made with malice and knowledge of falsity. Lindeman v. Lesnick, 268 Va. 532, 537 (2004). A qualified privilege, on the other hand, provides communications a limited privilege that can be defeated upon a showing of malice by clear and convincing evidence. Penick v. Ratcliffe, 149 Va. 618, 636 (1927). The court quickly disposed of the absolute-privilege argument, because the statements, while originally made in the course of a judicial proceeding, had been republished to the media, and it was that republication that formed the basis of the complaint's allegations.

The court found, however, that republication of pleadings does enjoy qualified protection, provided that the pleadings were public records at time they were sent to the media and that they were either copied verbatim, or extracted or summarized in a fair and accurate manner. The court noted Virginia Supreme Court precedent which held that "the publication of public records to which everyone has a right of access is privileged." The question thus became whether the attorney who forwarded the statements to the press did so maliciously.

A plaintiff seeking to overcome a qualified privilege must demonstrate that the defendant acted with actual malice at the time of publication, or with a "sinister or corrupt motive such as hatred, revenge, personal spite, ill will, or desire to injure the plaintiff," or that the defendant acted "with such gross indifference and recklessness as to amount to a wanton or willful disregard of the rights of the plaintiff." Preston v. Land, 220 Va. 118, 120-21 (1979). Because the plaintiff's complaint contained numerous allegations of malice, and because the question of whether a defendant acted with malice sufficient to overcome a privilege is a question of fact to be decided by the jury, the court overruled the demurrer and permitted the action to go forward.

The tort of defamation is widely misunderstood. Social media outlets like Facebook, LinkedIn and Twitter, which allow easy publication and dissemination of information to a wide audience, are leading to a rise in defamation lawsuits in Virginia and around the country. To be insulted by another, especially when it happens in a public forum, can be hurtful and embarrassing. Whether the insult constitutes actionable defamation under Virginia law, however, can present some complicated issues, often implicating the United States Constitution. Relevant considerations for any lawyer examining a defamation claim include the type and context of the speech, the identity of the speaker, the identity of the plaintiff, and the existence of qualified immunity or other defenses.

In Virginia, defamation includes both libel (written defamation) and slander (spoken defamation). There is no need for clever mnemonic devices to distinguish libel from slander, because Virginia law makes no meaningful distinction between the two and speaks only of the merged tort of defamation. The essence of any defamation claim is that a defendant published a false factual statement that concerns and harms the plaintiff or the plaintiff's reputation. While it is common to recite that "truth is a defense," that is not technically true, as falsity is a required element of the plaintiff's proof.

Proof of several elements is required. The defendant must know that the statement was false or must have lacked a reasonable basis for believing it to be true. Defamatory words that cause prejudice to a person in her profession are actionable as defamation "per se," meaning that it is not necessary to prove actual injury to reputation. Expressions of opinion, however, are constitutionally protected as free speech. Therefore, mere statements of opinion cannot form the basis of a defamation lawsuit.

The "publication" requirement means that the remarks were heard by a third party who understood the remarks as referring to the plaintiff in a defamatory sense. This is a fairly easy standard to meet (assuming a defamatory statement), as even accidental publication will suffice.

The Constitution plays two parts in the defamation analysis. First, it gives higher protection to those who speak on matters of public concern or about public figures. When an ordinary person brings a defamation claim that concerns a statement of no public concern, he only needs to prove the requisite elements by a preponderance of the evidence. When the plaintiff is a public figure (e.g., a celebrity or public officeholder), or when the statement at issue was one of public concern, then the bar is raised. The plaintiff would then need to prove, by "clear and convincing" evidence, that the defendant acted with actual malice. A defendant acted with actual malice if he knew the statement to be false or recklessly failed to verify the claim. "Clear and convincing" evidence is difficult to define but is a higher level of proof than a mere "preponderance." (You can think of it as requiring 75% certainty rather than 51% certainty, though that is not the legal definition).

The second constitutional requirement is that punitive damages may only be awarded upon the same clear and convincing finding of actual malice regardless of who the plaintiff is or if the statement was one of public concern.

The law of libel and slander is far too complicated to discuss in this small space. Consult an attorney if you have been the subject of defamatory speech, especially if your business or profession is being harmed as a result. While the First Amendment protects freedom of speech, a corresponding legal requirement exists to ensure that citizens be held responsible for abuse of that right.

Getting fired or laid off is hard enough without your boss trashing your reputation to your co-workers. I receive many calls from prospective clients interested in pursuing their former employer for defamation. Virginia employers, however, have a lot of leeway in what they can say about an employee being considered for termination before they will be liable for slander or libel. Virginia recognizes a qualified privilege against defamation claims where statements by an employer are made in connection with discharging that employee. To overcome that privilege, a plaintiff must prove common law malice by clear and convincing evidence.

Consider the recent Hanover County case of Koegler v. Green, decided on September 1, 2009. Carl Koegler sued his former employer, the Richmond-East Moose Lodge, as well as several of his former co-workers and employers, for defamation. The defendants demurred (i.e., moved to dismiss the case), citing the qualified privilege, and the court agreed with them and dismissed the case. The court emphasized that defamation claims against employers in Virginia will not be permitted to go forward absent strong evidence of malice.

The facts, according to the allegations in the complaint, were as follows: Mr. Koegler was employed by the Lodge in various positions over the years. An audit conducted by the international parent company resulted in Mr. Koegler's termination in 2008. Some of his former coworkers and managers talked to other employees about the firing. The acting Governor of the Lodge, for example, held a staff meeting and discussed what had been said in board meetings about Mr. Koegler and that Mr. Koegler had been suspended for stealing money. Another officer of the Lodge sent emails describing Mr Koegler as having "questionable character." Mr. Koegler sued for defamation and harm to his reputation.

The court held that, to state a claim for defamation, the plaintiff would have to allege sufficient facts to enable a reasonable jury to find clear and convincing evidence of "common law malice," defined as "some sinister or corrupt motive such as hatred, revenge, personal spite, ill will, or desire to injure the plaintiff; or what, as a matter of law is equivalent to malice, that the communication was made with such gross indifference and recklessness as to amount to a wanton or willful disregard of the rights of the plaintiff." In the end, the court concluded that Mr. Kroegler had not presented a case sufficient to enable a reasonably jury to find clear and convincing evidence of malice, and dismissed the case.

Worried about liability for statements made by others in an online forum hosted by your website? Provided you don't take an active role in editing the content posted by others, you shouldn't have to worry about defamation liability. The Communications Decency Act ("CDA"), found at 47 U.S.C. § 230, provides that "No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider." It further provides that "No cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section."

In the still-pending case of Cornelius v. DeLuca, filed in the Eastern District of Missouri, the plaintiffs, sellers of a dietary supplement called "Syntrax," sued various competitors for libel and tortious interference with business expectancies, and also sued the owners of bodybuilding.com--a website containing a forum for Internet discussion by the public--for supposedly assisting the other defendants post false and defamatory statements to the forum. In essence, the plaintiffs tried to get around the CDA by claiming the host of the forum wasn't a mere "provider" but an active participant in a conspiracy to post libelous, defamatory statements concerning the plaintiff's product. The court rejected the argument and dismissed the conspiracy count.

Under the CDA, while content providers cannot be held liable for the statements of others, they can be held liable for their own statements (which is why providers need to be careful not to edit others' statements, thereby arguably adopting the statement as their own). It is undoubtedly for this reason that the plaintiffs, realizing full well that the owners of bodybuilding.com did not make the statements at issue themselves, alleged that the owners conspired with the actual authors to allow the statements to be posted.

What the plaintiffs failed to do is present actual facts demonstrating the existence of a conspiracy. (To survive a motion to dismiss, a plaintiff must allege more than a mere formulaic recitation of the elements of a cause of action; he must allege facts that, if proven, would support the existence of the claimed cause of action.) The complaint at issue alleged no facts regarding the website owners' conduct other than the fact that they operated the message board, thereby "allowing" the allegedly defamatory statements to be published. No details were alleged concerning the details of the supposed conspiracy. The court held that, in light of the CDA, this was not enough.

Most Virginia employers these days are careful to avoid using defamatory language when terminating employees.  They know that defamation actions (i.e., lawsuits alleging libel and/or slander) are best avoided by responding to inquiries from other employers by identifying an ex-employee's dates of employment and position held, but little else.  Although "truth is a defense" (statements about an employee will not be defamatory if they are true) and an employer usually has a qualified privilege to make statements that arise out of an employment relationship, no employer wants to get sued by a disgruntled ex-employee and employment lawyers are constantly thinking up new theories of employer liability.

One recent theory that has gained a following in certain states is based on the so-called "compelled self-publication" doctrine.  Virginia, however, is not one of those states, according to a memorandum opinion issued on May 6, 2009, by a federal court sitting in Richmond.

Here's how the theory works.  First, to bring a claim for defamation in Virginia as well as in most other states, a plaintiff must allege not only a defamatory statement made with the requisite intent, but that the statement was "published" (i.e., made) by the defendant to a third party.  The idea behind "compelled self-publication" is that even if a careful employer does not publish the reasons for an employee's termination to a third party, merely having a false, pretextual justification for the termination in the employee's personnel file should make the employer liable for defamation because it somehow compels the discharged employee to tell prospective employers the reasons he or she was fired.  

In Wynn v. Wachovia Bank, the Eastern District of Virginia held that Virginia law does not recognize such a theory.  Wynn, whom Wachovia had terminated, sued Wachovia for defamation on the ground it stated her termination was for "job abandonment" and that she had taken unauthorized paid time off, reasons she claimed were false.  Wynn did not claim that Wachovia published these statements to a third party; rather, she claimed the reasons offered for her termination put her "in the untenable position of having to defame herself when seeking employment elsewhere."  The court held flatly that regardless of whether Wachovia "forced" the plaintiff to defame herself, Wachovia could not be held liable for defamation without the requisite publication to a third party.  

A couple from Culpeper, Virginia, has sued the Culpeper Police Department for alleged inappropriate behavior upon discovering sexually explicit photographs on a cell phone.  According to the lawsuit, the police arrested Nathan Newhard in March 2008 for DUI and possession of a firearm, and confiscated his cell phone.  Upon inspecting the phone, a town police officer discovered sexually explicit photographs of his girlfriend.  The officer then used the police radio system to announce the availability of the pictures to any interested police officer and several officers viewed the photographs.  Shortly thereafter, Mr. Newhard claims, the police notified his employer, the County of Culpeper School System, that Mr. Newhard had nude photos on his cell phone.  The school told him he would not be recommended for another term, and he resigned.  

Mr. Newhard describes the litigation as a case brought to remedy "egregious and unconscionable violations of the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution" and asserts counts for "deliberate indifference," "right to privacy," "outrageous conduct," defamation, intentional infliction of emotional distress, and failure to train.

It will be interesting to see which claims stick.  I stongly doubt the alleged facts state a valid claim for defamation (which requires a showing of falsity) or intentional infliction of emotional distress (which generally requires more extreme conduct than that alleged, as well as more severe emotional injuries).  A claim that appears to be missing is tortious interference with contractual relations.  If what Mr. Newhard is claiming is true, and a police officer showed a nude picture of his girlfriend to his employer for the purpose of getting him fired, that is the sort of behavior that would likely support a tortious interference claim.

With the increasing popularity of "sexting" (the practice of attaching sexually explicit photos in text messages sent between phones) and the debate surrounding its legality, it will also be interesting to see whether the alleged behavior by the Culpeper Police Department amounts to a deprivation of contstitutional rights as alleged in the Complaint.  More about sexting in the clip below.