7.2 Nature of the Communication

• Library: The Virginia Lawyer: A Deskbook for Practitioners (Virginia CLE) (2022 Ed.)

7.2 NATURE OF THE COMMUNICATION

7.201 In General.

Prospective litigants should begin their consideration of defamation claims by analyzing the basic nature of the pertinent communication.

7.202 "Communication" Requirement.

The defamation tort requires a communication rather than silence. ⁴⁰⁵⁵

7.203 Civil Versus Criminal Defamation.

This chapter focuses on the civil tort of defamation. However, the following defamatory communications may also amount to criminal misdemeanors:

· Using abusive language calculated to provoke a breach of the peace; ⁴⁰⁵⁶

· Accusing a chaste person of unchaste acts, unless provoked; ⁴⁰⁵⁷

· Knowingly making false statements "concerning any person or corporation" to newspapers, television stations, or other media; ⁴⁰⁵⁸ and

· Making defamatory statements about the financial condition of banks. ⁴⁰⁵⁹

These laws seem to be archaic attempts to deter duels or Depression-era bank failures, and they now receive little if any attention.

7.204 Libel Versus Slander.

Unlike some states, Virginia recognizes no distinction between actions for libel (written defamation) and for slander (oral defamation). ⁴⁰⁶⁰ This approach simplifies Virginia law but unfortunately renders irrelevant one of the few defamation rules that most lawyers recall from law school. Inexplicably, some courts continue to use the old terms. ⁴⁰⁶¹

7.205 Liability for Third Party's Defamation.

Only in very rare cases can liability be imposed on someone other than the person who communicates the defamatory statement. The narrow exceptions include (i) a master's liability for an agent's defamation (under standard imputed liability principles); and (ii) a very narrow exception for premises owners who do not remove defamatory communications from the premises they control. ⁴⁰⁶²

7.206 Internet Search Engine Results and Automated Online "Speech."

Freedom of speech has long applied beyond the spoken and written word. The U.S. Supreme Court has held that it applies to expressive conduct, such as marching in a parade, saluting a flag, or wearing an armband. ⁴⁰⁶³ But what about Internet search engine results and automated online "speech"?

The Court's 1974 decision in Miami Herald Publishing Co. v. Tornillo⁴⁰⁶⁴ that the editorial decisions of a newspaper on what to print—and what not to print—are protected by the First Amendment has led some courts to apply the same rationale to protect technology-driven Internet company speech. ⁴⁰⁶⁵

This rationale will be tested in future cases...