The most misunderstood concept in defamation law is the distinction between fact and opinion and its relation to liability. Most people (very smart ones included) mistakenly believe that only facts are actionable as defamation. But in California opinions are actionable as well if they can ". . . reasonably be understood as declaring or implying actual facts capable of being proved true or false."
This is the way it works: a court will examine the totality of the circumstances starting with the alleged defamatory statement itself to determine whether the statement is factual or implies a fact that can be proven false. If the answer is yes, the statement may be actionable assuming the other elements of a libel or slander claim are met. If not, it’s over.
But don’t be fooled. The distinction between a fact and an opinion is very gray, and is often one of the most difficult questions a court must consider, with the exception of calculating damages. The reason is that language is susceptible to multiple meanings and is made in a variety of contexts. Further, courts have held that rhetorical hyperbole, figurative language, or epithets are not actionable. So what exactly is the line between rhetorical hyperbole and an actionable opinion?
Some examples are obvious. For instance, saying someone is a "traitor," is clearly hyperbole when you mean to say that that person is despicable, not that the person is guilty of treason. Or if a politician calls another politician (what a surprise) a "thief" or a "liar," clearly, this too would qualify as rhetorical hyperbole.
Still some calls are harder to make. For example, what if someone said, "I think Smith is an alcoholic." One could easily make the argument that the statement implies undisclosed facts that are known to the person making the statement, which may be capable of being proved true or false, and therefore might be actionable. On the other hand, one could also successfully argue that the person making the statement was merely expressing his personal opinion or belief.
As you can see, the line is not clear between what constitutes a fact and what constitutes an opinion. Don’t believe for a minute that your stated opinions are necessarily protected under the First Amendment. They may not be.
Argument employers may
use to try to defeat a defamation claim is
that the defamatory statements published
about the employee were statements of
opinion, rather than fact. In order to
constitute actionable defamation, the
offensive publication must consist of
statements of fact, rather than opinion.
The statements at issue
should be carefully examined to deter-
mine if they are statements of fact or
opinion. Often, apparent expressions of
opinion imply an assertion of fact and
are therefore actionable. (Weller v.
American Broadcasting Companies, Inc.
(1991) 232 Cal.App.3d 991, 999.) Thus,
a statement in the form of an opinion
may be actionable if it is implied that it is
based on some undisclosed defamatory
facts. (Baker v. L.A. Herald Examiner
(1986) 42 Cal.3d 254, 266; Okun v.
Superior Court, supra, 29 Cal.3d at 451-
452.) The issue of whether the statement
is fact or opinion is then one for the jury.
(Slaughter v. Friedman (1982) 32 Cal.3d
149, 154.) The dispositive question for
the court is whether a reasonable fact
finder could conclude that the published
statements imply a provably false asser-
tion of fact. (Moyer v. Amador Valley Joint
Union High School District, supra, 225
Cal.App.3d at 724.)
To answer this question, the court
applies a “totality of the circumstances”
test, pursuant to which the court reviews
the meaning of the language in the total
context in which the statement was made.
Depending on the status of the defamer,
apparent expressions of opinion may
imply an assertion of fact where the
defamer’s expertise lends authority to his
or her statements that would cause the
average reader to assume they were
asserting facts and “carry a ring of
authenticity that reasonably might be
understood as being based on fact.”
(Slaughter v. Friedman, supra, 32 Cal.3d at
154). In Slaughter, accusations were made
that a dentist charged excessive fees or
performed unnecessary work. The Court
explained that such accusations by lay-
men might constitute mere opinion, but
such accusations by professional dental
plan administrators carry a ring of
authenticity and reasonably might be
understood as being based on fact.
Similarly, where the defamer is a mana-
gerial employee, his or her expertise
regarding the plaintiff ’s competence or
performance in executing his or her job
duties may reasonably be understood as
being based on facts. In such a situation,
where the person to whom the statement
was published could have understood it
in either sense, it is for the jury to decide
whether the statement is fact or opinion.
(Id. at 154.) See also Good Government
Group of Seal Beach, Inc. v. Superior Court
(1978) 22 Cal.3d 672, 682.
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