Avoiding Defamation Lawsuits

In some cases, even a true statement may be considered defamatory.

Parnigoni, 681 F.Supp.2d 1 (D.D.C. 2010).009)

Key point 4-02. Defamation consists of (1) oral or written statements about another person; (2) that are false; (3) that are "published" (that is, communicated to other persons); and (4) that injure the other person's reputation.

Key point 4-02.03. A number of defenses are available to one accused of defamation. These include truth, statements made in the course of judicial proceedings, consent, and self-defense. In addition, statements made to church members about a matter of common interest to members are protected by a "qualified privilege," meaning that they cannot be defamatory unless they are made with malice. In this context, malice means that the person making the statements knew that they were false or made them with a reckless disregard as to their truth or falsity. This privilege will not apply if the statements are made to nonmembers.

Key point 4-04. Many states recognize "invasion of privacy" as a basis for liability. Invasion of privacy may consist of any one or more of the following: (1) public disclosure of private facts; (2) use of another person's name or likeness; (3) placing someone in a "false light" in the public eye; or (4) intruding upon another's seclusion.

A federal court in the District of Columbia ruled that a former church employee could sue the church for defamation and invasion of privacy as a result of the church's disclosure to its members that the employee had married a registered sex offender.

The facts of the case, as alleged by the employee in her lawsuit, are as follows. A woman was employed as a teacher at a church preschool for seven years. During her employment her fiancé was charged with, and ultimately convicted of, indecently exposing himself to a minor. The teacher informed the preschool director of her fiancé's conviction, and the director informed the church board. The church took no action at that time, and the teacher continued her employment without any further discussion of the matter. In time, the teacher and her fiancé were married. At no time did anyone associated with the church or preschool indicate that the teacher's marriage would be cause for concern or place her job in jeopardy.

A few years later the couple enrolled their son at the preschool. At this time the preschool director met with the teacher and inquired into the details of her husband's prior conviction.

The director stated that the teacher was required to disclose the details of her husband's conviction so that the director would be able to explain the circumstances to any parent who might inquire about the situation. The director later informed the teacher that the church board was "nervous" about her husband because "he might now have reason to be on the school property to pick up his son." The teacher explained that she planned to walk her son a block away from the school to rendezvous with her husband on days that he was responsible for driving him home.

A few weeks later, the teacher met with the church's senior pastor, who announced her decision to make a full public disclosure of the husband's prior conviction "to all parents of students attending the preschool and the entire parish." The pastor also indicated that the church planned to announce the fact that she, a teacher at the school, was married to a convicted sex offender.

The teacher insisted that the church had not indicated any concerns regarding her husband, and so she surmised that the new concern was related to her son's enrollment in the school. As a result, she offered to withdraw her son from the school to avoid any "embarrassment to her and her family." She eventually did so after the church's attorney informed her that this would be helpful. She also offered to terminate her employment "in order to avert public disclosure" of her husband's conviction, but the school rejected her offer.

A few days later the pastor met with the school staff and informed them of the prior conviction. She insisted that the sole reason for making the disclosure was the teacher's "poor judgment" in marrying a sex offender and not the enrollment of her son in the preschool. Following this meeting the pastor sent a letter to all members of the church informing them of the husband's registration with the state sex offender registry as a result of his prior conviction for indecent exposure to a minor. The letter went on to state that it had been sent to "enable parents to make informed decisions as to whom they should entrust the care and supervision of their children." It further stated that because the church lacked the ability "to anticipate every possible future scenario [the church's leadership] believed their best course of action was to give the parents the information they needed to protect their children."

The teacher and her husband (the "plaintiffs") sued the church, preschool, pastor, and preschool director (the "defendants") alleging several theories of liability, including defamation and invasion of privacy. The court declined the defendants' request to dismiss all of the plaintiffs' claims.

A Viable Claim

The court noted that a viable defamation claim requires (1) a false and defamatory statement concerning another; (2) publication or dissemination of the statement without privilege to a third party; (3) the defendant's fault in publishing the statement amounted to at least negligence; and (4) the statement was defamatory as a matter of law or its publication caused the victim special harm. The court concluded that the teacher's defamation claim met these requirements, but not her husband's.

Remarkably, the court concluded that the statements in the pastor's letter to church members could be defamatory even though they were true. While this seems to contradict the first element of defamation (a false statement), the court reasoned that the contents of the letter amounted to "defamation by implication" since a reasonable person reading the letter could "draw a defamatory inference." The court explained: "If a communication, by the particular manner or language in which true facts are conveyed, supplies additional, affirmative evidence suggesting that the defendant intends or endorses the defamatory inference, the communication will be deemed capable of bearing that meaning."

The court rejected the defendants' argument that the pastor's letter was privileged since her objective was to protect children from a registered sex offender. It observed:

Assuming for the sake of argument that the defendants acted solely for the purpose of protecting the children at the school … the defendants should have sent the letters only to the parents of the school's children …. However, the defendants did not limit the scope of their dissemination to that audience, but also sent the letters to all members of the parish …. The dissemination was therefore much more extensive than necessary. And the fact that the defendants delayed the disclosure of the information for approximately three years after [the teacher] advised them of her husband's conviction, coupled with the decision to make the disclosure only after she married [him] undermines the defendants' stated reason for making the disclosure and supports the plaintiffs' position that the disclosure was made to chastise [the teacher] for exercising what the defendants consider to be her poor judgment in marrying [a sex offender] …. In addition, the defendants also ignored [the teacher's] several attempts to avoid the release of this information, including removal of her child from the school and her offer to resign as an alternative to the disclosures. The defendants' actions, coupled with their disapproval of [the teacher's] marriage … support the plaintiffs' contentions that it was the defendants' desire to condemn [the teacher] for her marital decision, thus rendering their publication of the information not only negligent, but malicious.

First Amendment defense

The court, in rejecting the defendants' argument that the plaintiffs' claims were barred by the First Amendment guaranty of free speech, observed: "The defendants contend that their statements qualify as opinions that are protected by the First Amendment. This Court does not agree. An opinion which asserts provably false and defamatory facts is not deserving of the protections of the Constitution."

Invasion of privacy—false light

"Invasion of privacy" comprises several separate wrongful acts, including placing someone in a "false light" and the public disclosure of private facts. The plaintiffs asserted that the defendants were liable for both of these kinds of invasion of privacy as a result of the letter the pastor sent to members of the church which mentioned the husband's registered sex offender status and insinuated that both spouses were potential child molesters.

The court noted the following four requirements of a false light-invasion of privacy claim: "(1) publicity; (2) about a false statement; (3) understood to be of and concerning the plaintiff; and (4) which places the plaintiff in a false light that would be offensive to a reasonable person." The court concluded that the teacher had a viable false light claim, and so it rejected the defendants' request that it dismiss this claim. It observed: "The defendants' release of information about [the husband's] conviction as a sex offender and statements about whom parents should trust with the care of their children reasonably created the false impression that [his wife] was a threat to the students simply because of her association with [him] and placed her in a highly offensive light …. In fact, the defendants received letters expressing outrage at their actions and their implication that she presented a risk to the safety of the students at the school."

Invasion of privacy—publication of private facts

Invasion of privacy also includes the publication of private facts about another in a manner that would be highly offensive to a reasonable person. The defendants insisted that the pastor's letter to church members did not involve the publication of private facts since, though embarrassing, this information was a matter of public knowledge. The court agreed, and dismissed this claim.

Application. This case is significant for the following reasons:

1. It is one of a few cases to hold that a statement need not be false to be defamatory.

2. The pastor's letter, sent to all church members, was not privileged since not all members had a legitimate need to know that the husband was a registered sex offender. In most states, statements shared with church members on matters of common interest are privileged, meaning that they cannot be defamatory or an invasion of privacy unless made maliciously (i.e., with a knowledge the statement was false, or with a reckless disregard as to its truthfulness). However, this court cautioned that statements may not be privileged if disseminated to members not having a legitimate need to know.

The court observed: "Assuming for the sake of argument that the defendants acted solely for the purpose of protecting the children at the school … the defendants should have sent the letters only to the parents of the school's children …. However, the defendants did not limit the scope of their dissemination to that audience, but also sent the letters to all members of the parish …. The dissemination was therefore much more extensive than necessary." This principle is often implicated when church leaders seek to inform the congregation about the dismissal of a staff member for misconduct.

Church leaders should understand that statements made to nonmembers, or even to members not having a legitimate "need to know," are not privileged and therefore expose the church to potential liability for defamation or invasion of privacy. This risk can be mitigated by limiting the disclosure to those members having a need to know.

3. This case illustrates that a church may be liable on the basis of "false light" invasion of privacy for disseminating statements that place someone in a false light. However, the false light in which the person was placed must be highly offensive to a reasonable person, and it must have been publicized either with a knowledge that it was false or with a reckless disregard concerning its truthfulness.

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