7.20 DAMAGES
7.2001 In General. When the law was simpler, damages for defamation were easier to determine but more difficult to assess: a guilty defendant had his tongue cut out. 1063 There are now various rules depending on the nature of the damages sought. Defamation law recognizes a unique panoply of damages: presumed, compensatory, and punitive.
7.2002 Presumed Damages. 1064
A. In General. Plaintiffs who can satisfy the special requirements of defamation law may find themselves entitled to presumed dam-ages—an unusual bonanza for tort plaintiffs. 1065
B. Availability. If the court determines as a matter of law that the defamation amounts to defamation per se, 1066 a plaintiff is entitled to presumed damages. 1067 Thus, although characterizing defamation as per se no longer creates significant differences in liability issues, it can have a dramatic effect in assessing damages. Both private and public plaintiffs presumably may recover presumed damages.
[Page 1011]
A 2009 Eastern District of Virginia decision introduced its description of Virginia's presumed damages law with the phrase: "[w]here as here, a private individual . . . ." 1068 That wording could imply that public official or public figure plaintiffs would not be entitled to recover presumed damages, but the court did not explicitly take that approach.
C. Categories of Defamation Per Se. As explained above, 1069 the law characterizes certain categories of defamation as defamation per se:
| • | Words imputing the commission of a crime involving moral turpitude; | ||
| • | Words imputing infection with a contagious disease; | ||
| • | Words imputing unfitness to perform, or lack of integrity in the performance of, the duties of a job or office; and | ||
| • | Words necessarily prejudicing a person in his or her profession or trade. 1070 |
D. Fault Requirement.
1. History. The availability of presumed damages does not mean that a Virginia private plaintiff may recover damages without proving the defendant's fault. 1071 Although the United States Supreme Court has intimated that the United States Constitution permits a private plaintiff to recover under a strict liability theory for defamation not involving a matter of public concern, 1072 Virginia has declined to return to strict liability.
2. Public Plaintiffs. Because public plaintiffs must establish constitutional malice to recover any compensatory damages, they must there
[Page 1012]
fore establish constitutional malice to recover presumed damages for defamation per se.
3. Private Plaintiffs. Private plaintiffs pleading and proving defamation per se deserve presumed damages under one of two standards depending on the defamation's substance. First, if the defamation does not involve "a matter of public concern," 1073 a private plaintiff proving defamation per se deserves presumed damages if he or she establishes the defendant's negligence by a preponderance of the evidence. 1074 Second, a private plaintiff establishing defamation per se on a "matter of public concern" must prove constitutional malice before deserving presumed damages. 1075
Only a few Virginia cases have dealt with the standard for determining whether an allegedly defamatory statement involves a "matter of public concern." In WJLA-TV v. Levin, 1076 the court implicitly confirmed that a television station's report about a doctor's practices (including an arguably unorthodox treatment used with women) involved "a matter of public concern." 1077 In contrast, the Virginia Supreme Court had earlier implicitly indicated that an employer's defamatory statements about a former employee's alleged efforts to alter a truck's speed "governor" did not involve "matters of public concern." 1078 The Eastern District of Virginia noted in one case that the plaintiff conceded that a television station's broadcast about the fraudulent sale of flood-damaged cars involved "a matter of public concern." 1079
It is unfortunate that Virginia courts have not more explicitly explained the proper way to analyze this issue because it can have enormous consequences on the availability of presumed damages.
E. Scope. 1080 Presumed damages may encompass psychological injury and harm to reputation but not monetary loss. 1081
[Page 1013]
The Virginia Supreme Court has been fairly generous in upholding the award of presumed damages even in the absence of any proof of specific harm. For instance, in Poulston v. Rock, 1082 the trial court reduced both compensatory and punitive damages awarded to the plaintiff based on the defendant's calling him a "liar" and "thief" in restaurants and to the plaintiff's employer. The trial court noted that the plaintiff had presented no proof of reputational harm and that his own witnesses testified that they did not believe the defendant's accusation. The plaintiff suffered no salary loss or physical or emotional injury.
The Virginia Supreme Court nevertheless reversed, criticizing the trial court for ignoring the "longstanding principle that, even in the absence of any evidence of pecuniary loss, the damages which the injured party is entitled to recover may be substantial." 1083 The court noted that people might have heard the defamatory statements in the restaurants and that the plaintiff's employer might mistreat the plaintiff in the future as the result of the defamation.
More recently, the Virginia Supreme Court explained that "the jury needed no proof of damages suffered by [the plaintiff] on which to predicate its compensatory award based upon the per se defamation negligently published by [the defendant]." 1084 Interestingly, a 1917 Virginia Supreme Court decision seemed to acknowledge that the defendant had the right to "attempt to rebut this presumption [of damages for defamation per se] by asking the question as to what actual injury the plaintiff had in fact sustained by the libel . . . in the diminution of damages." 1085 However, the Supreme Court has not addressed that issue since 1917.
A 2009 Eastern District of Virginia decision (articulating the court's damage analysis after the plaintiff had waived a jury trial) did not simply pick a number out of the air but instead analyzed the plaintiff's possible damages. The court rejected the plaintiff's attempt to analogize his damages to statutory damages under the Anti-Cybersquatting Consumer Protection
[Page 1014]
Act. 1086 The court also noted that the plaintiff "elected not to present specific proof of the amount of damages he suffered . . . even though he was invited to do so by Order." 1087
F. Role of Court and Jury. As explained in paragraph 7.910 , the court decides as a matter of law whether a statement constitutes defamation per se. The court also decides whether the statement involves a "matter of public concern." 1088 After the court makes these threshold determinations, the jury decides whether the plaintiff has established the requisite degree of fault along with the other elements.
7.2003 Compensatory Damages. 1089
A. In General. Compensatory damages may include recovery for monetary loss, psychological injury, and harm to reputation. 1090 Plaintiffs are entitled only to compensatory damages "proximately caused" by the defama-tion. 1091
B. Speculative Nature. Assessing compensatory damages in a defamation case may seem inevitably speculative. 1092
Proving monetary loss may be difficult, but a court may look to nondefamation cases for some guidance in determining an appropriate amount. Determining the proper damages for psychological injury creates many more problems. How can a court objectively determine the amount a...
