The impact of the coronavirus is new ground for us all.
One word of caution – don’t accuse other people of having the coronavirus when they don’t have it. That goes for employees, businesses, competitors, or anyone.
Such a statement could create a legal mess for you or your business.
The coronavirus could fall into an obscure area of defamation law that deals with “loathsome diseases.”
I’m going to discuss the specifics of New York law, but many other states have similar laws.
Let’s do a quick tutorial on what is defamation. Then I’ll explain where coronavirus fits in.
In a nutshell, defamation is an oral or written factual and defamatory statement about a person that was published to others. Businesses and corporations count for defamation. You can defame a corporation and corporations can be sued for it.
Slander refers to spoken defamation while libel refers to written defamation.
Defamation does not need a wide audience to be damaging – it could just be published to a single person.
In many defamation lawsuits, you also have to prove damages. Just because someone said something bad about you, does that mean you’re damaged? Maybe not.
However, for four categories of lies, you do not have to prove damages. Rather, damages are presumed. The reasoning is that defaming someone in these areas will automatically cause damage.
They call this defamation per se and the categories are as follows:
- False charges about a serious crime
- Injury to someone’s trade or business
- Impugning a woman that she is unchaste
- False charges about a “loathsome disease”
Yes, false charges that someone has a “loathsome disease” is defamation per se. That means that damages are presumed.
These are archaic categories, but it is good law in the state of New York. A 2018 case before the First Department determined that HIV/AIDS was a “loathsome disease” and that the categories of defamation per se were still valid.
It also extends to corporations. So, lying that someone at a business has a “loathsome disease” is presumed to be damaging.
The question – does coronavirus count as a “loathsome disease”?
To my knowledge, this has not been addressed by any court, but I suspect that it will be soon.
Under New York law (and many other states), a “loathsome disease” for the purposes of defamatory has two qualities: (1) it is contagious, and (2) has a social stigma. The reasoning is that people might mistreat a victim of a loathsome disease. If someone lies about you having such a disease, then the law presumes you’ve been damaged.
Let’s consider a few examples.
Cancer – It is horrible, and might carry some stigmas (for instance, lifestyle cancers like smoking). However, it is not contagious. Therefore, it is not “loathsome.”
HIV/AIDS – It is contagious. People with the disease are still mistreated and stigmatized. So, yes, it is “loathsome.”
Where does coronavirus/ COVID-19 fit in?
The disease is highly contagious.
But is it socially stigmatized? Let’s consider this.
On its face, social response to coronavirus seems to treat all people equally.
As of today, April 4, 2020 in New York City, the government-mandated quarantine is in effect. The government advises anyone out in public to maintain six feet distance between themselves and other people.
Everyone must keep the distance with other people. That seems fair, right? No social stigma?
However, the consistency of the rules is far from perfect. Different jurisdictions have different rules. Plus, the quarantine rules are always shifting. Are these hard rules or just guidelines?
A recent addition in New York is the suggestion to wear face coverings in public. This is problematic as proper medical masks are in high demand and very hard to find. It’s also suggested for people to wear bandanas or scarves over their faces if they cannot find a proper medical mask. This is a little confusing as we hear the virus can still pass through normal fabrics.
People will be people
I’ve already encountered someone in a Brooklyn grocery store who got mad at me and accused me of breaking quarantine. She told me to stand back while she was going through the check out line (I was directly behind her in line).
She was also yelling at me in Spanish and I really had no idea what she was saying. I just picked up on the social contextual cues that’s what was happening.
She may have even been yelling at me to not give her coronavirus. I have no idea.
That just one example.
What happens when mass numbers of people are isolated, bored, and on social media?
Those outlets are filled with judgmental comments during normal times. Add to that the stress and confusion of this pandemic, the online communities are a free-for-all of false accusations.
I’m sure there are many false accusations of spreading the virus for people who aren’t infected, but maybe the accusations are spurred by violating the quarantine.
I think that’s grounds for defamation per se.
We’re all in uncharted territory now with the virus. We might see a lot of lawsuits emerge from this craziness. Some will be for our judgmental accusations during this quarantine. New Yorkers have been known to sue each other for far less.
