Defamation is a matter of state law, but because of the free speech protections of the First Amendment to the United States Constitution, important rules have been crafted by the Supreme Court of the United States.
There are three important considerations in defamation cases. First, was the injury to reputation apparent? If not, can it be presumed? Second, were the defamatory words made maliciously? Answering these questions provides a framework for determining the strength of a Virginia defamation claim.
A private individual need only prove by a preponderance of the evidence that the publication was false, and that the defendant either knew it to be false, or believing it to be true, lacked reasonable grounds for such belief, or acted negligently in failing to ascertain the facts on which the publication was based. Great Coastal Exp., Inc. v. Ellington, 334 S.E.2d at 852-3. Compensatory damages (covering actual losses) in defamation cases include to damage to reputation and standing in the community, embarrassment, humiliation, mental suffering, and any pecuniary loss. Gazette, Inc. v. Harris, 325 S.E.2d 713, 723 (Va., 1985).
If the defamatory statement makes substantial danger to reputation apparent, New York Times malice is not required for the plaintiff to recover compensatory damages. Great Coastal, 334 S.E.2d at 852. New York Times malice implies knowledge that the publication was false or with reckless disregard for the truth. Id. at 855 n.3.
Per Se Defamation
Publications tending to injure someone in his profession or accusations of the commission of a crime which is “punishable by imprisonment in a state or federal institution” are actionable per se, and give rise to presumed compensatory damages. Schnupp v. Smith, 249 Va. 353, 457 S.E.2d 42 (Va., 1995). A statement imputes the commission of a crime when it refers to matters that would naturally and presumably be understood by those hearing them as charging a crime. Food Lion, Inc. v. Melton, 458 S.E.2d 580, 584 (Va., 1995). New York Times malice is not required to recover compensatory damages in a per se defamation case. See Great Coastal, 334 S.E.2d at 853.
Punitive Damages in Defamation Cases
A plaintiff has a right to have the jury instructed on punitive damages (to punish the wrongdoer) in a defamation case, if he introduces some proof of New York Times malice. Great Coastal, 334 S.E.2d at 853. New York Times malice may be shown where there are obvious reasons to doubt the informant’s story, or if there is a deliberate failure to acquire knowledge to confirm the probable falsity of the charges. Harte-Hanks Communications, Inc. v. Connaughton, 491 U.S. 657, 688-92 (1989).
The Words and Their Publication
It is a general rule that allegedly defamatory words are to be taken in their plain meaning and to be understood by courts and juries as other people would understand them, and according to the sense in which they appear to have been used. Carwile v. Richmond Newspapers, 82 S.E.2d 588, 591-92 (Va., 1954). A defamatory charge may be made by inference, implication or insinuation. Id.
Publication may be proved by either direct or circumstantial evidence that remarks were heard by a third party who understood remarks as referring to plaintiff. Food Lion, 458 S.E.2d at 585.
The doctrine of qualified privilege may defeat cases involving alleged defamatory statements made between persons on a subject in which the persons have an interest or duty. Fuste v. Riverside Healthcare Ass’n, Inc., 265 Va. 127 (2003).
It is the duty of the Court to determine whether or not the occasion is privileged, and it is the duty of the jury to determine whether or not the privilege has been abused. Haycox v. Dunn, 200 Va. 212, 228 (1958). The privilege has been abused and presents no bar to the plaintiff if the accusations were not made in good faith, and in an honest belief of their truth, or were given unnecessary publicity, or were made maliciously. Snyder v. Fatherly, 158 Va. 335 (1932); Great Coastal, 334 S.E.2d at 854-55 (Va., 1985).