Note: This page covers information specific to Virginia. For general information concerning defamation, see the general Defamation Law section of this guide.
Elements of Defamation
In Virginia, the elements of a defamation claim are
- publication of
- an actionable statement with
- the requisite fault on the part of the defendant.
Defamation Per Se
Virginia recognizes that certain statements constitute defamation per se. These statements are so egregious that they will always be considered defamatory and are assumed to harm the plaintiff's reputation, without further need to prove that harm. In Virginia, a statement that does any of the following things amounts to defamation per se:
- attributes to the plaintiff the commission of some criminal offense involving moral turpitude, for which the party, if the charge is true, may be indicted and punished;
- indicates that the plaintiff is infected with a contagious disease;
- attributes to the plaintiff unfitness to perform the duties of an office or employment of profit, or lack of integrity in the discharge of the duties of such an office or employment; or
- hurts the plaintiff in his or her profession or trade.
Fleming v. Moore, 221 Va. 884, 899 (1981).
Public and Private Figures
The Virginia courts generally require a high level of public activity before a plaintiff becomes a limited-purpose public figure. The definition of a limited-purpose public figure is covered in the general Actual Malice and Negligence section of this guide under the limited-purpose public figures discussion (scroll down to the topic heading "limited-purpose public figures"). In Virginia, courts look at the following factors in determining whether a plaintiff is a limited-purpose public figure:
- whether the plaintiff had access to channels of effective communication;
- whether the plaintiff voluntarily assumed a role of special prominence in a public controversy;
- whether the plaintiff sought to influence the resolution or outcome of the controversy;
- whether the controversy existed prior to the publication of the defamatory statements; and
- whether the plaintiff retained public figure status at the time of the alleged defamation.
Carr v. Forbes, Inc., 259 F.3d 273, 280 (2001)
In Virginia, the courts have found the following individuals, among others, to be limited-purpose public figures:
- the president of the two charitable organizations because the charities thrust themselves into the public eye through fund raising awareness efforts (Chapin v. Knight‑Ridder, Inc.);
- a widely-published scientist and self-styled whistleblower who claimed the National Cancer Institute (NCI) had reversed its official position on whether a pesticide was carcinogenic (Reuber v. Food Chem. News);
- A dolphin scientist who attempted to sell his dolphin technology to military and nonmilitary industries and who sought to influence the outcome of a public controversy through brochures and public statements (Fitzgerald v. Penthouse).
On the other hand, the courts have found the following individuals and organizations, among others, to be private figures:
- a university professor who spoke twice in public hearings concerning a public controversy (Fleming v. Moore);
- a public school English teacher and short-term, acting department head whose students complained of her poor teaching performance to parents and the school principal (Richmond Newspapers v. Lipscomb);
- a company engaged in archaeological research for both government and private entities that was not generally known to the community and did not seek press regarding a public controversy (Arctic Co., Ltd. v. Loudoun Times Mirror).
Actual Malice and Negligence
Virginia courts apply a negligence standard to defamation claims brought by private figures seeking compensatory damages when the allegedly defamatory statement makes substantial danger to reputation apparent. In cases brought by private figures where substantial danger to reputation is not apparent, the actual malice standard applies. The Gazette, Inc. v. Harris, 325 S.E.2d 713, 725 (Va. 1985).
Public officials, all-purpose public figures, and limited-purpose public figures must prove that the defendant acted with actual malice, i.e., knowing that the statements were false or recklessly disregarding their falsity. See the general page on actual malice and negligence for details on the standards and terminology mentioned in this subsection.
Privileges and Defenses
Virginia courts recognize a number of privileges and defenses in the context of defamation actions, including substantial truth, the opinion and fair comment privileges, and the fair report privilege.
CMLP has not identified any Virginia cases that recognize or refuse to recognize the neutral reportage privilege or the wire service defense. See Chapin v. Knight‑Ridder, Inc., 993 F.2d 1087, 1097 (4th Cir. 1993) (stating that "[w]e have never adopted or rejected the ‘neutral reportage' privilege . . . .")
There also is an important provision under section 230 of the Communications Decency Act that may protect YOU if a third party – not you or your employee or someone acting under your direction – posts something on your blog or website that is defamatory. We cover this protection in more detail in the section on Publishing the Statements and Content of Others.
Fair Report Privilege
In Virginia, the precise scope of the fair report privilege is not clear because all of the cases interpreting it have involved reports of court proceedings. The privilege covers reports of court proceedings, including matters stated in court documents, when the report is made in good faith and substantially accurate.
In Alexandria Gazette Corp. v. West, 93 S.E.2d 274, 279 (Va. 1956), the Virginia Supreme Court stated that "[t]he publication of public records to which everyone has a right of access is privileged, if the publication is a fair and substantially correct statement of the transcript of the record." Because the case involved court proceedings not other government records, this statement would not necessarily bind later courts, but it is likely that Virginia courts would apply the privilege to government records open to the public. In that case, you would be privileged to report on information contained in marriage and divorce records, birth and death records, and property records, among other things, in addition to matters reflected in court records and proceedings.
A few federal courts interpreting Virginia law have applied the fair report privilege to "governmental actions," like the unofficial public remarks of a member of Congress, Chapin, 993 F.2d at 1097, and an official letter of reprimand leaked to the press, Reuber, 925 F.2d at 713.
Neutral Reportage Privilege
Wire Service Defense
Statute of Limitations for Defamation
The statute of limitations for defamation is one (1) year. See Va. Code Ann. Sec. 8.01-247.1.
The Virginia Supreme Court has not ruled on whether the single publication rule applies in the state, although several Virginia circuit courts have cited the single publication rule favorably. See Armstrong v. Bank of Am., 61 Va. Cir. 131, 132 (2003) (noting circuit courts in Fairfax and Richmond, Virginia, that have cited the single publication rule favorably). For a definition of the "single publication rule," see the Statute of Limitations for Defamation section. One federal appeals court applying Virginia law upheld application of the single publication rule, reasoning that a great majority of states now follow it. Morrissey v. William Morrow & Co., Inc., 739 F.2d 962, 967 (4th Cir. 1984).
The CMLP could not locate any cases in Virginia that apply the single publication rule in the context of a statement published on the Internet. If you are aware of any Virginia cases that acknowledge the single publication rule in the Internet context, please notify us.