Blogging and Defamation

Last summer, I successfully obtained a summary judgment against a defamation claim involving a blog post.  With the proliferation of blogs, Facebook, and Twitter postings, defamation lawsuits are undoubtedly going to rise.  In my case, the Court agreed with me that the blog post was not actionable defamation because the comments were opinions protected by the First Amendment.

Recently, Courtney Love obtained a jury verdict rejecting a defamation claim involving a tweet by Ms. Love which stated that one of her attorneys had been "bought off."  Needless to say, the attorney took issue with the posting and sued Ms. Love for defamation.  Ultimately, the jury found that while the statement was defamatory (because it was false), Love was not liable for the defamation because she did not know the statement was false at the time she tweeted.  In other words, the statement was an opinion which is not actionable. 


Defamation requires a publication that is false, defamatory, unprivileged, and has a
tendency to injure or cause special damage. Pure opinions – “those that do not imply facts capable of being proved true or false” – are protected by the First Amendment. Assertions of fact and statements that “may imply a false assertion of fact, however, are not protected.”  In my case last summer, the Court examined the context of the blog entries, including examined the purpose of a blog and how readers would understand the statements made.  The Court found that in the context of a blog, readers are smart enough to understand that the statements made on a blog are more likely to be one of opinion rather one of fact.  In particular, the Court wrote: readers of the blog entry "would realize that [Defendant] wrote it from its own perspective to paint itself in a better light, and would not understand it to be 'statements of fact rather than the predictable opinion . . . of one side about the other's motives.'"

Now, before you begin tweeting, posting, or blogging all kinds of nasty things about a competitor, be mindful that the line between opinion and a statement of fact (defamation) is very thin.  Generally, when making a statement, it is best to provide the facts upon which you base your opinion in order to allow a reader to accept or reject your opinion by reviewing your facts.