As I blogged a while back, modern defamation law generally applies only to false statements, but at some point a literally true statement may so strongly carry a false connotation that the speaker could be held liable for the implied falsehood despite the literal truth. A classic example, mentioned in an early 1960s case — though it’s been around outside the defamation context at least since 1916 — involves the first mate who, upset by his teetotaling captain, writes in the ship’s log,
Captain sober today.
Now Tomblin v. WCHS-TV8 (4th Cir. May 11) offers another interesting example, though likely more controversial — the panel split 2-1:
After WCHS-TV8 in Charleston, West Virginia, broadcast a news report that a four-year-old child was sexually abused …, the owner of the daycare commenced this action for defamation and related torts. On WCHS-TV8’s motion, the district court entered summary judgment in favor of the television station …, concluding that the station accurately reported the abuse allegations made by the mother of the child.
After review of the record, including a copy of the broadcast in question, we conclude that there are genuine issues of material fact as to [plaintiff’s] claims. By reporting that the daycare was alleged to have abused a child, the television station may have published a false statement inasmuch as it knew and left out the fact that the incident involved one four-year-old boy touching the rectum and genitalia of another four-year-old boy. Accordingly, we vacate the summary judgment and remand to the district court for further proceedings.
The case also involves claims that the express wording of the statement was literally false (for instance, by labeling the touching as “sexual abuse”), and not just that it was defamatory by implication; still, the court also notes that the conclusion may be defamatory by implication:
[W]e have reviewed the broadcast as a whole and conclude, when taken as a whole, there could be a question of fact as to whether the broadcast produced a false “implication, innuendo or insinuation” about the daycare. The broadcast repeatedly referenced the sexual abuse of a child in the context of a daycare, potentially creating the impression that a daycare worker abused a child. The seriousness and drama with which the broadcast was made, also indicate, something far more serious than the failure to prevent the assault of one four-year-old boy by another.
If you’re interested in more, have a look at the opinions.