Supreme Court of Virginia, Record No. 141480,June 4, 2015: Accusation of conservation easement violation is not defamation in Virginia.
At issue was whether public accusations that a party violated a conservation easement is defamation in Virginia. The Plaintiffs, 3 Dog Farm, LC, and Happy Tails sought a special use permit to operate a boarding kennel of more than five canine animals. The defendant, Bouffault (a member of the County Planning Commission), sent emails and made public statements claiming that the kennel as proposed would violate conservation easements (among other allegations). Happy Tails and 3 Dog brought suit, claiming that these statements characterize them or their principal as “a lawbreaker, one without integrity, or one with disregard for the law,” or imply that Happy Tails was in violation of the law, and that defendant made these statements with the intent to defame. The trial court ruled that the statements were not defamatory and the Plaintiffs appealed.
The court reviewed Virginia law about defamation, saying that a statement is actionable under state law if it is both false and defamatory. Defamatory words are those “tend[ing] so to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him.” Citing Restatement (Second) of Torts § 559 and Chapin v. Knight-Ridder, Inc., 993 F.2d 1087, 1092 (4th Cir. 1993) (applying Virginia law). An actionable false statement must have a “requisite defamatory ‘sting’ to one’s reputation, citing Air Wis. Airlines Corp. v. Hoeper, ___ U.S. ___, ___, 134 S.Ct. 852, 866 (2014). The court also cited its own decision holding that the level of harm to one’s reputation required for defamatory “sting,” is that defamatory language “tends to injure one’s reputation in the common estimation of mankind, to throw contumely, shame, or disgrace upon him, or which tends to hold him up to scorn, ridicule, or contempt, or which is calculated to render him infamous, odious, or ridiculous.” Moss v. Harwood, 102 Va. 386, 392, 46 S.E. 385 (1904).
The court then found that the potential violation of an easement “does not as a general principle carry the ‘sting’ of a reprehensible crime. The mere implication that one might be in violation of an easement, absent more — such as inflammatory language or context to suggest that the statement causes particular harm to one’s reputation — does not rise to the level of defamation. It does not so ‘harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him,’ … such as by making [Bouffault] appear odious, infamous, or ridiculous, or subjecting her to contempt, scorn, shame, or disgrace.”
The court also found that whatever innuendo might be contained in Bouffault’s statements, it does not characterize the defendant as a “law breaker” or “a person of disregard for the legal obligations pertaining to the Property.”
The court upheld the decision of the trial court. There were other issues in this matter unrelated to conservation or historic preservation easements.
Decision available at http://www.courts.state.va.us/opinions/opnscvwp/1141480.pdf.