Talkin’ smack (a primer on defamation law)

As an attorney, I am often asked to review statements that are about to be made, or have been made, and give an opinion on whether the statement is defamatory. The law of defamation is not very intuitive; rather, it is filled with nuance. And to be sure, defamation is not always in the eye of the beholder.

Let’s begin with the legal definition for defamation. In order to be actionable, the words must contain a provably false factual assertion about an individual which tends to harm the individual’s reputation in the community. Therefore, three elements are needed to prove defamation:

1. A false statement of fact;
2. The statement sufficiently lowers a person’s standing in the community (this is sometimes referred to as having the “sting” of defamation); and
3. The statement must have been published, either orally or in writing.

Regarding the third element, someone can defame you directly to your face with impunity if no one else is in earshot. In order to bring a lawsuit, the statement must have been published to other third persons.

As for the first and second elements, there must be a provably false statement that is sufficiently damaging. Matters of viewpoint or opinion are not defamatory. Consider, the following statements have been deemed by our Virginia Supreme Court not to be defamatory:

• One physician calling another physician “unprofessional” and “uncooperative”
• One architect saying that another architect was “inexperienced” and that the architect charged “an unjustifiably high fee”
• One employee stating that a colleague was “frequently verbose and vocal in her opinions,” that she was “unwilling to learn from her mistakes,” and that “her behavior is destructive and negative to the rest of the team.”

While those characterizations are unpleasant, they are matters of opinion. Those statements depended on the speaker’s point of view. On the other hand, statements that are asserted as facts, but are false, are defamatory. For example, the chairman of a large company once said that its former chief executive had “lost the company $3 million” and had cost the company “exorbitant losses due to his management.” Those statements can be proven true or false.

In another context, a case involving a surgeon who became angry with the anesthesiologist after the patient died, snarled at the anesthesiologist “you just euthanized this patient!” in front of other hospital staff in the operating room. Well, that statement—whether the anesthesiologist caused the death of the patient—can be proven true or false. Therefore, it was actionable.

Statements that are truly regarded as defamatory are labeled as defamation per se. In those cases, a plaintiff is not required to prove actual damages because damages are presumed. Defamation per se captures statements that fall into one of four special categories:

• A statement imputing a crime to someone (e.g., “Mr. Smith is a convicted felon!”)
• A statement imputing a contagious, loathsome disease (e.g., “Mr. Smith has herpes!”)
• A statement that prejudices someone’s profession or trade (e.g., “You know Dr. Smith was sanctioned by the Board of Medicine.”)
• A statement that impugns someone’s fitness to perform his or her job or impugns his or her integrity in the workplace (“e.g., “Mr. Smith was fired from his last employer” or “Mr. Smith routinely receives complaints from his customers.”)

The law considers statements touching on those topics (crimes, disease, etc.) to be of such a high degree of seriousness that a plaintiff is presumed to have been harmed by them.

So, as you can see, you can talk a lot of “smack” about someone, without it qualifying as defamation. But when you make an utterance and assert it to be a fact, watch out. The facts had better be on your side. And this is because, in a defamation lawsuit, truth is always a defense.