The Opinion Defense: Can a Statement of Opinion Be Defamatory?

Labeling a statement an opinion does not automatically make it an opinion or make it safe from the possibility of it being defamatory. If a reader or listener could reasonably understand that the communication as stating a fact that could be verified, the communication will not be considered an opinion, especially if it is sufficiently derogatory to hurt the subject’s reputation. Also, a communication that is presented in the form of an opinion may be considered defamatory if it implies that the opinion is based on defamatory facts that have not been disclosed.

In other words, the fact that a statement is one’s opinion does not necessarily make one immune from a defamation lawsuit.

Expressions of Opinion

An expression of opinion may be “simple” or “mixed.” A “simple” expression of opinion is made after the facts on which the opinion is based are presented. A “mixed” expression of opinion is not accompanied by the facts. They may be implied by the speaker or assumed by those receiving the communication.

This distinction is significant in light of a Supreme Court decision that holds that an expression of opinion cannot be the basis of a defamation action. Gertz v. Robert Welch, Inc., (1974) 418 U.S. 323, 339. If an expression of opinion is based on disclosed, non-defamatory facts, an action is not supported no matter how unreasonable or derogatory the opinion is. However, if the expression of opinion is based on undisclosed or implied facts, support of an action depends on the understanding of the recipient of the statement, since the meaning of a communication is that which the recipient reasonably understands it to be, even if he/she is mistaken in that understanding. So if the recipient reasonably believes the truth of an undisclosed or implied defamatory fact about the subject of a statement, the speaker is liable.

Elements and Defenses

As with any claim of defamation, the plaintiff must establish that:

  • The statement was published by the defendant, meaning it was spoken or distributed to at least one other person other than the plaintiff;
  • The statement provides enough information that the plaintiff is identifiable;
  • The statement harmed the plaintiff’s reputation in some way;
  • The defendant was at least negligent in publishing the statement.

As always, truth is an absolute defense, which is especially significant when considering a claim involving an opinion. The Court has stated, “Under the First Amendment there is no such thing as a false idea.” Gertz v. Robert Welch, Inc., (1974) 418 U.S. 323, 339. An opinion, therefore, will be considered defamatory only if the implication to the recipient is that there is a factual basis for the opinion that can be proven to be false.

A defendant cannot claim that the undisclosed facts were not defamatory and that he/she unreasonably formed a defamatory opinion, because the meaning of the communication is based on the reasonable understanding of the recipient.

Furthermore, a factual statement, whether words or images, may constitute a communication that is considered defamatory based upon the meaning conveyed to recipients of the communication through its presentation. If the statement of fact is accompanied by derogatory implications or associations, the publisher is liable. Dixson vs. Newsweek, Inc., 562 F.2d 626 (10 Cir. 1977).

Cartoons and caricatures are generally not considered defamatory when they are based upon known or assumed facts and are intended for entertainment and not to be taken seriously.

Conclusion

The law governing defamatory communication is it relates to expressions of opinion is complicated. The internet defamation attorneys at Minc Law, can guide you in determining whether you have a claim. Contact them today at (216) 373-7706 or fill out the Minc Law online contact form.

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Andrew Stebbins avatar Andrew Stebbins on August 21, 2020
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