Could you bring a successful claim for defamation against a person who alleges that you have Covid-19 if you do not actually have the virus?
What if someone alleges that you transmitted Covid-19 to someone else?
And can a person or business successfully sue someone who publishes a false statement saying the person or business failed to safely prevent employees or customers from contracting Covid-19, including allegations of failure to follow CDC guidelines or institute cleaning procedures?
Elements of Defamation
Defamation claims are governed by state laws. Generally, the subject of a publication made orally or in writing can establish a claim for defamation against the author if the publication is a false statement that harms the reputation of or otherwise damages the subject of the statement. The statement usually must be more than mere opinion, though an opinion implying a false statement of fact may be actionable.
Defamation generally comes in two varieties, “per se” and “per quod.” “Per se,” defamation, unlike “per quod,” presumes existence of reputational damages without requiring proof, at least until trial.
“Per se” treatment is available only to certain types of claims, including statements that tend to injure one’s trade, business, or profession, or impute to another a “loathsome disease.” See Liberman v. Gelstein (N.Y. 1992).
A successful claim for defamation must establish that the publisher was at least negligent in making the false statement. However, in some cases, including where the alleged victim is a public figure, defamation requires “actual malice,” meaning that the statement was made with “knowledge that it was false or with reckless disregard of whether it was false or not.” New York Times Co. v. Sullivan, 376 U.S. 254 (1964).
False Claims and Damages
False Allegations an Individual Has Covid-19 or Transmitted It
In response to false allegations that one is or was previously Covid-19 positive, in theory, one can obtain a medical test to disprove the statement, as required for defamation claims. However, current antibody test accuracy rates may make such evidence insufficient.
Disproving a statement that accuses a person of transmitting Covid-19 to another individual could similarly pose challenges if the alleged transmitter has or had Covid-19, given how easily the virus can be transmitted and how challenging it is to prove the method of transmission. Further, if the publication is merely conveying an opinion, a defamation claim may not succeed.
A bigger hurdle to establishing defamation under these scenarios may be in proving damages. With so many people testing positive for Covid-19, and where the condition is a temporary (albeit potentially serious) one, despite some evidence to the contrary, the virus may not be sufficiently stigmatized to cause reputational damages.
Even if stigmatized, being Covid-19 positive is not likely to constitute a “loathsome disease” to warrant “per se” defamation application and alleviate the need to initially establish reputational harm.
Traditionally, the “loathsome disease” category was intended to protect individuals from being falsely associated with contagious diseases tied to “socially repugnant conduct,” including sexually communicable diseases and leprosy. See e.g., Chuy v. Philadelphia Eagles Football Club (3d Cir. 1979).
However, a New York appellate court recently held that a false allegation that a person was HIV-positive was defamatory “per se” under the doctrine because “it can still be said that ostracism is a likely effect of a diagnosis of HIV.” Nolan v. State (1st Dept. 2018).
Nevertheless, it is questionable as to whether Covid-19 would similarly constitute a loathsome disease in the eyes of a court, because it is transmitted easily without sexual intercourse and, even though incurable, it is not likely to remain contagious for more than two weeks, even absent treatment.
Without “per se” application, proving damages resulting from the published accusations could be challenging, but not impossible. For example, damages may exist if a person is fired because of publication of a false statement about Covid-19 status or transmission.
Injury to Profession, Business
False Allegations a Person or Business Failed to Take Adequate Measures to Prevent Employees or Customers from Contracting Covid-19
A false allegation that a person or business failed to protect employees or customers from contracting Covid-19. For example, if a supermarket or office, upon reopening, is accused of failing to disinfect the premises or refusing to allow employees to wear masks and gloves, this could potentially trigger claims sufficient to allege injury to business or trade under the defamation “per se” rubric. Such allegations could lead to reputational damage causing loss of personnel or a decrease in consumers frequenting the business.
“Per se” defamatory false statements deemed injurious to a business or profession are typically limited to those referencing significant and important matters of “a kind incompatible with the proper conduct of the business, trade, profession or office itself.” Medcalf v. Walsh (S.D.N.Y. 2013). An allegation concerning business safety may fall within that scope.
However, speech that is of “public concern” is not entitled to the “per se” defamation application. See Philadelphia Newspapers Inc. v. Hepps, 475 U.S. 767 (1986). Here it is probable that publication of the health and safety concerns at issue in the scenario would qualify as speech that is of public concern.
But even if defamation “per se” is inapplicable, the subject of the publication can still establish damages to demonstrate the negative effects resulting to the business. Defamation hinges on the specific nature of the statements though.
For example, a publication merely conveying opinion that a supermarket was delinquent because it only wiped down its check out areas once a day is unlikely to be actionable. As with the scenarios discussed above, the person or business accused of inadequate protections will need to establish that the publication was at least negligent and false.
This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.
Ethan Krasnoo is counsel at Reavis Page Jump LLP who advises and engages in dispute resolution on behalf of both companies and individuals on First Amendment, employment, entertainment and media, intellectual property, insurance and data privacy matters.