Virginia's Not For Lovers: Why Virginia May See More Defamation Claims After Depp v. Heard

In the wake of the recent six-week-long trial and defamation verdict in favor of Johnny Depp in Virginia's Fairfax County Circuit Court, many are asking what led to this outcome. Holland & Knight litigators share three factors that led to this result.

1. Virginia's Weak Anti-SLAPP Law

There has been widespread speculation that in Depp v. Heard, Johnny Depp's attorneys maneuvered his defamation case to Virginia state court in order to take advantage of Virginia's relatively weak anti-SLAPP legislation. But what exactly is an anti-SLAPP law, and how does Virginia's benefit defamation plaintiffs?

SLAPP stands for Strategic Lawsuit Against Public Participation. These are commonly understood to be meritless defamation and other tort claims filed to retaliate against and silence critics – usually consumers, activists or journalists – who speak out negatively against them. Oftentimes, the specter of protracted litigation and the associated exorbitant costs are enough to cow a party's critics into silence, even though the threatened suits lack merit. In order to combat SLAPPs' chilling effect on First Amendment rights, 32 states and the District of Columbia have passed anti-SLAPP legislation to discourage the filing of SLAPP suits.

Most states' anti-SLAPP laws provide defendants a way to seek a quick and inexpensive dismissal of a defamation case before discovery begins. For example, California (where Depp and his ex-wife Amber Heard reside and have more connections than Virginia) provides that SLAPP defendants may invoke anti-SLAPP immunity and file a motion to strike a complaint within 60 days of service. The case is then stayed until the judge decides whether the defendant is immune from suit under the state's anti-SLAPP law.

After some high-profile defamation suits were filed in Virginia, including Depp v. Heard and Nunes v. Twitter,¹ the Virginia General Assembly amended the Commonwealth's anti-SLAPP statute. The amendment grants immunity from defamation claims to persons who speak out on a matter of public concern to either a third party or governing body, so long as the statements are not made with knowledge or reckless disregard of their falsity.²

Even after this amendment, however, Virginia's anti-SLAPP law lacks any defined procedure for defendants to challenge SLAPPs and resolve questions of immunity in the pleading or pre-trial stages of the case.³ Instead, a defendant in Virginia may raise anti-SLAPP immunity only as a defense to the jury at trial. Consequently, a defendant in a defamation suit in Virginia faces significantly more economic risk than defendants in other jurisdictions because he or she must take on the costs of litigating the case through trial in order to even substantively argue an anti-SLAPP defense. Thus, even though Virginia has adopted anti-SLAPP legislation, it remains a pro-plaintiff venue due to the significant economic risk that defamation lawsuits pose to defendants.

2. Virginia's Lengthy Long-Arm Statute

A second reason for defamation plaintiffs to choose Virginia is its amenability to personal jurisdiction over defendants. Personal jurisdiction is, essentially, a court's ability to exercise power over a defendant. That power can be exercised over people who are residents of a state. But every state also has what is called a long-arm statute that specifying additional circumstances for personal jurisdiction. These circumstances typically include other actions by which a person makes a connection with the state, such as by causing a legal harm, doing business or owning real property.

Virginia's long-arm statute includes an unusual feature – one that makes its reach lengthy indeed. Like many states, Virginia scoops up defendants who "caus[e] tortious injury by an act ... in this Commonwealth."⁴ But an "act" includes merely using a computer network in Virginia: "Using a computer or computer network located in the Commonwealth shall constitute an act in the Commonwealth."⁵ And it doesn't take much for "use" to occur: "A person 'uses' a computer or computer network when he attempts to cause or causes a computer or computer network to perform or to stop performing computer operations."⁶ Finally, "computer operations" are just about anything a computer does: "'Computer operation' means arithmetic, logical, monitoring, storage or retrieval functions and any combination thereof, and includes, but is not limited to, communication with, storage of data to, or retrieval of data from any device or human hand manipulation of electronic or magnetic impulses. A 'computer operation' for a particular computer may also be any function for which that computer was generally designed."⁷

Thus, a defendant could conceivably trigger personal jurisdiction in Virginia merely by sending a defamatory message that rests or travels through a Virginia-based server. That's not a low-probability event. As Iowa is for corn, Kansas for wheat and Georgia for peaches, Virginia is for server farms. It's not every place in America that has streets named Cloud Plaza and Megawatt Drive. The Virginia suburbs of Washington, D.C. – particularly Ashburn in Loudoun County – are touted as "home to the largest concentrations of data centers in the world."⁸ Reportedly, 70 percent of the world's internet traffic passes through these data centers.⁹

Virginia's computer provision was one basis for personal jurisdiction in the Depp case. The complaint asserted that defendant's defamatory statements were published "in an online edition of [a] newspaper that is created on a digital platform in Virginia and routed through servers in Virginia."¹⁰ Virginia's state and federal courts have encountered many other cases where personal jurisdiction was alleged on the basis of Virginia's computer provision.¹¹

With all that said, the long-arm statute's computer provision has at least two limitations. First, some courts have held that the statute requires a defamatory statement to not only travel through Virginia's internet byways but that it also cause injury in Virginia.¹² And "[g]enerally, the brunt of the injury in defamation cases is where the plaintiff lives and works."¹³ This is a contestable interpretation of the statute, and additional judicial decisions may develop on both sides of this issue.

Second, even if Virginia's long-arm statute is satisfied, a plaintiff must also satisfy the due process clause of the U.S. Constitution. Defendants cannot be haled into court anywhere of the plaintiff's liking, even if technically authorized to do so by a state statute. As every first-semester law student learns, personal jurisdiction requires a showing that the defendant has "certain minimum contacts with [the state] such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice."¹⁴ Here too, Virginia's courts have observed that merely satisfying the long-arm statute is not enough without a showing that the defendant intended harm specifically in Virginia,¹⁵ such as by publishing a defamatory statement "with a specific intent to reach a Virginia audience."¹⁶

3. Limited Summary Judgment Practice

A third reason Virginia state courts make a favorable forum for individuals claiming defamation is a long-standing pro-plaintiff procedural advantage: extremely limited summary judgment for defendants. Most state courts (and all federal courts) permit summary judgment motions. Such motions seek dismissal of claims before trial on grounds that there is no genuine dispute of material fact for a jury to decide. Typically these motions are supported by documents as well as deposition testimony and affidavits. But Virginia is unique in that no depositions or affidavits are permitted by a party moving for summary judgment.¹⁷ That is, unless all parties agree to use depositions to support a summary judgment motion (and it is highly unlikely that any defamation plaintiff would agree to use depositions to potentially dismiss their claim prior to trial). The Virginia General Assembly amended this rule in 2019 to allow discovery depositions and affidavits in support of a motion for summary judgment when the only parties to the action are business entities and the amount at issue is at least $50,000.¹⁸ But this new carve-out does nothing to protect defendants from individual plaintiffs claiming reputational damage.

This plaintiff-friendly Virginia rule helps defamation claims survive. If an individual's claim survives an initial motion to dismiss based on the four corners of the complaint (called a demurrer in Virginia state practice), it likely won't be dismissed on summary judgment either. Therefore, it will go to a jury unless the case settles beforehand. Moreover, as the Supreme Court of Virginia has observed (in a prior case where Heard's counsel represented a plaintiff), "Only if a plaintiff unequivocally has admitted the truth of an allegedly defamatory statement, including the fair inferences, implications, and insinuations that can be drawn from that statement, may the trial judge award summary judgment to the defendant on the basis that the statement is true."¹⁹ A tough hurdle indeed for defendants seeking pre-trial dismissal of a defamation claim.

¹ Nunes v. Twitter, Inc., CL 19-1715-00 (Va. Cir. Ct., Henrico Cty. 2019) (California Congressman suing Twitter over statements made by parody Twitter account in Virginia state courts).

² Va. Code § 8.01-223.2(A).

³ See Va. Code § 8.01-223.2.

⁴ Va. Code § 8.01-328.1(A)(3).

⁵5 Va. Code § 8.01-328.1(B).

⁶ Va. Code § 18.2-152.2.

⁷ Va. Code § 18.2-152.2.

⁸ E.g., Vantage Data Ctrs., "What Made Northern Virginia the World's Largest Data Center Market?" Data Centers Today: Blog (Aug. 21, 2020).

⁹ E.g., Dora Mekouar, "Here's Where the Internet Actually Lives," VOA News (Feb. 17, 2020).

¹⁰ Compl. ¶ 10, Depp v. Heard, No. 2019-02911 (Va. Fairfax Cnty. Sup. Ct. Mar. 1, 2019).

¹¹ See, e.g., Carfax, Inc. v. Accu-Trade, LLC, No. 1:21-cv-361 (RDA/TCB), 2022 U.S. Dist. LEXIS 38853, at *11–14 (E.D. Va. March 4, 2022); Aitken v. Commc'ns Workers of Am., 496 F. Supp. 2d 653, 659 (E.D. Va. 2007); Lucido v. Maxwell, 93 Va. Cir. 415, 417–18 (Fairfax Cnty. Cir. Ct. 2016).

¹² See Mireskandari v. Daily Mail & Gen. Trust PLC, 105 Va. Cir. 370, 374 n.13 (Fairfax Cnty. Cir. Ct. 2020).

¹³ Id.

¹⁴ Int'l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945).

¹⁵ See, e.g., StratusLIVE, LLC v. Wimr Grp., LLC, No. 2:19cv623, 2020 U.S. Dist. LEXIS 203652, at *10–15 (E.D. Va. Oct. 14, 2020).

¹⁶ Lucido v. Maxwell, 93 Va. Cir. at 418.

¹⁷ Va. Sup. Ct. Rule 3:20; Va. Code § 8.01-420(A).

¹⁸ Va. Code § 8.01-420(C).

¹⁹ Hyland v. Raytheon Technical Services Co., 277 Va. 40, 48 (2009).

Information contained in this alert is for the general education and knowledge of our readers. It is not designed to be, and should not be used as, the sole source of information when analyzing and resolving a legal problem, and it should not be substituted for legal advice, which relies on a specific factual analysis. Moreover, the laws of each jurisdiction are different and are constantly changing. This information is not intended to create, and receipt of it does not constitute, an attorney-client relationship. If you have specific questions regarding a particular fact situation, we urge you to consult the authors of this publication, your Holland & Knight representative or other competent legal counsel.