The Volokh Conspiracy
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$25K Damages for Statements Alleging Woman's Fiancé Said Her "Vagina Stinks"
From Ihim v. Magambo, decided Friday by the Appellate Court of Maryland (opinion by Judge Dan Friedman, joined by Judges Stephen Kehoe and J. Frederick Sharer:
In May 2021, an anonymous user on Instagram sent a direct message to Achilihu suggesting that her fiancé, Magambo, had commented on her body odor. Several days later, … Chukwurah, a friend of both Achilihu and Ihim, told Achilihu that Ihim had made two remarks about Achilihu's body odor—that (1) "… Achilihu's vagina stinks" and that (2) "… Magambo told me that … Achilihu's vagina stinks." … Achilihu shared these statements with Magambo.
Chukwurah sent another message to Achilihu in June. This time, Chukwurah said she was told by Ihim that Ihim had screenshots confirming that Magambo made the second statement about Achilihu's body odor. Achilihu and Magambo discovered one final anonymous online post about a year later. The user, this time posting on the gossip website Lipstick Alley, also alleged that Magambo had criticized Achilihu's body odor.
Magambo and Achilihu sued Ihim for, in relevant part, defamation and intrusion upon seclusion; a judge awarded Achilihu $10K actual damages + $5K punitives, and Magambo received $5K actual damages + $5 punitives. The appellate court concluded that the statements tended to expose someone to sufficient opprobrium, a necessary element of a defamation claim:
Ihim alleges there is insufficient evidence to show the two statements exposed Magambo and Achilihu to any reputational damage. To satisfy the first element of defamation, however, Magambo and Achilihu are not required to show actual reputational damage. A defamatory statement need only be of the type that "tend[s]" to expose a person to scorn, hatred, and the like. The test is simply "whether the words, taken in their common and ordinary meaning … are capable of defamatory construction."
That test is satisfied here. The statement "… Achilihu's vagina stinks" tends to expose Achilihu to contempt or ridicule regarding both her health and her hygiene. The statement "… Magambo told me that … Achilihu's vagina stinks," coupled with the extrinsic fact that the two are engaged, tends to expose Magambo to contempt or ridicule by communicating a breakdown in the relationship between the couple or a lack of discretion on the part of Magambo. Each statement discourages others from having a good opinion of both parties and satisfies the first element of defamation….
The court also upheld the actual damages award:
A court may award actual damages based on anxiety and other mental and emotional harms. There was evidence that these defamatory statements frayed the relationship between Magambo and Achilihu to such a point that they paused their wedding planning. Testimony revealed that Achilihu experienced severe stress from the statements, which was compounded by her studying for the bar exam at the same time. For his part, Magambo stated he suffered from depression and panic attacks. Each also attended therapy at least in part because of the defamatory statements. Based on this evidence, the circuit court did not clearly err in awarding Achilihu and Magambo actual damages based on "humiliation, embarrassment, [and] stress."
And the court upheld the punitive damages award:
To be awarded punitive damages, a plaintiff must prove actual malice by clear and convincing evidence. Actual malice is "a person's actual knowledge that his or her statement is false, coupled with his or her intent to deceive another by means of that statement." {Maryland's highest court [has] held that actual knowledge of falsity, and not merely reckless disregard of truth, is required to prove actual malice in the context of recovering punitive damages in defamation actions.} Actual malice can be inferred from circumstantial evidence.
Ihim knew by clear and convincing evidence that the defamatory statements were false and attempted to deceive others about its falsity. First, the circuit court found that Ihim fabricated the screenshot that allegedly captured Magambo messaging Ihim about Achilihu's body odor. This screenshot was never introduced, and every witness—including Ihim—denied ever seeing the screenshot.
Second, testimony supported, and the circuit court found, that Ihim attempted to influence the deposition of Chukwurah by texting her—as the deposition was happening—to answer questions vaguely and to deny that Ihim communicated the defamatory statements to her. These findings are sufficient to infer that Ihim knew and attempted to deceive others about the falsity of the defamatory statements because they display Ihim's attempts to conceal her involvement in and insulate herself from the defamatory statements. As a result, the circuit court did not err in awarding punitive damages to Magambo and Achilihu.
{Ihim also argues that the statement "… Achilihu's vagina stinks" is merely an opinion and thus cannot be proven true or false for purposes of establishing the second element of defamation. A statement is false if it is "not substantially correct." Whether an opinion is defamatory depends on whether the factual basis for the opinion is either disclosed or undisclosed and either true or false. Regardless, we need not determine if this is an opinion because the argument was neither raised at trial nor decided by the circuit court.}
Ihim didn't substantively challenge liability for intrusion upon seclusion claim, though she did raise an evidentiary objection that I didn't excerpt. Eric Kirk (Kirk Law Firm) and Steven Michael Klepper (Kramon & Graham, P.A.) represent plaintiffs.
