Is a statement falsely advising that a person tested positive for COVID-19 defamatory? As COVID-19 continues to threaten public health and serve as a major concern for individuals, it would certainly appear that falsely identifying someone as testing positive for COVID-19 could cause them harm, either personally or professionally. But, again, does that constitute defamation? While standards of proof vary by state, generally, a defamation claim requires the publication of a written or oral statement of fact (to someone other than the plaintiff) that harms the reputation of, or otherwise damages, the subject of the statement.

Defamatory statements are those that expose a person (or entity) to hatred, ridicule, or cause them to be shunned within their community. Defamation actions can take two forms. Defamation per quod requires the plaintiff to present extrinsic facts to establish the defamatory nature of a statement. By contrast, in defamation per se actions, general damage is presumed. A plaintiff pursuing defamation per quod based on a publication stating she tested positive for COVID-19 will be required to allege and prove special damages to succeed. Given the challenges associated with this burden, a plaintiff’s best chance at success may be to allege that COVID-19 is a loathsome disease, and therefore qualifies as defamation per se. Will courts consider COVID-19 a loathsome disease? The question is currently unsettled, but both plaintiffs and defendants will have support for their point of view.