December 11, 2020
Broadly, defamation is any false communication that destroys or otherwise harms a person’s reputation. It includes a statement presented as a fact which is intended to cause such harm.
Defamation can further be categorized into slander or libel. Slanderous statements are those that are defamatory and published via speaking. Libelous statements are those that are defamatory and made in writing.
When it comes to opinion, such a statement does not generally amount to defamation since, objectively, they are not true or false. However, where the statement of opinion or a true statement taken out of context contains some false implication or defamatory innuendo, a court may find liability for defamation.
Virginia’s and Washington D.C.’s civil codes regarding defamation also encompass libel and slander and provide for damages where a false statement damages someone’s reputation depending on the intent of the person making the false statements.
In order to find someone liable for defamation, the plaintiff in a defamation cause of action must show:
1. The defendant made an actionable statement;
2. The statement was about or concerned the plaintiff;
3. There was publication of the statement; and
4. The defendant had the requisite intent when making the statement.
An “actionable statement” means a statement that is both false and defamatory in that it causes some harm to the plaintiff or his reputation. It is the burden of the plaintiff to prove by a preponderance of the evidence that the statement is false. In other words, it must be shown that the fact that the statement was false is likely truer than not.
To prove that the defendant made the defamatory statement about or concerning the plaintiff, the plaintiff should show that the statement was intended to cite the plaintiff and would be understood as concerning the plaintiff by someone who knew him.
Publication of the statement means that the statement was published to a third party and without privilege.
The requisite intent of the defendant that must be proved to hold him liable for defamation includes a showing that the defendant knew that the statement was false or acted recklessly or negligently in determining whether the statement was false. Recklessness occurs when the person making the defamatory statement did not do enough in determining whether the statement was false. Negligently making a false statement means that the defendant was unreasonable in determining and making the falsity.
When defending a defamation lawsuit, a defendant will be successful where he can show that the statements made were substantially true. For example, if the defendant said that the plaintiff stole a green shirt, but the shirt was actually blue, the court might find that the allegedly defamatory statement was substantially true and relieve the defendant of liability.
Defamation per se involves statements that are presumed to be defamatory and, in a successful cause of action, damages are presumed. The presumption of defamation and damages exists because these statements are considered so damaging that the plaintiff need not prove the harm to his reputation.
A statement that is defamatory on its face can include:
There are generally three types of damages that are awarded in a plaintiff’s successful defamation cause of action.
1. Actual Damages: These damages are designed to compensate the plaintiff for the quantifiable harm suffered. The purpose of these compensatory damages is to put the plaintiff in the position he was in before the defamation occurred.
2. Presumed Damages: Available in defamation per se cases, these damages are awarded because, in the eyes of the law, the statements are inherently defamatory, and the harm to the plaintiff’s reputation is presumed.
3. Punitive Damages: These damages are designed to punish the wrongdoer. In Virginia, punitive damages for defamation are capped at $350,000. In order to award them in a defamation lawsuit, a court must find that the defendant acted with actual malice. Additionally, in defamation per se cases, compensatory damages are not required to award punitive damages.
One of the easiest and most common ways to stop defamation is by sending what is known as a Cease and Desist Letter. Cease and desist letters explain the offense that the subject of the letter may be liable for and explains that a lawsuit will be filed if the unwanted behavior continues or is not remedied. In the case of defamation, a cease and desist letter will likely require that the potential defendant retract any false statements made about the author of the letter. Additionally, the letter should show that there is enough evidence to pursue a defamation lawsuit, including the reasons as to why the statements are false.
It should be noted that cease and desist letters are formal documents that require certain statements and formats. As such, it would be wise to hire a lawyer with experience in defamation to prepare and send a cease and desist letter.
Defamation can severely and negatively affect a person’s life. False statements can ruin a person’s reputation and affect their professional life. If false statements about you have been made to others, whether by written or oral communication, you may be entitled to compensation for the harm caused by the falsities to your reputation. The skilled attorneys at McClanahan Powers, PLLC are available to help you prepare a cease and desist letter or file a lawsuit should your situation warrant it. Our attorneys will help you to understand whether you have been defamed and the defenses likely to be brought by the person who made the statements.
If you have suffered harm to your reputation because of defamation, contact McClanahan Powers, PLLC at 703-520-1326, or visit our website and schedule your consultation today.