Statements of Opinion
5.9.4 Statements of Opinion
Statements that contain pure opinion (ie, purely subjective judgment without assertion of fact) are not legally actionable because opinions cannot be proven true or false.3(§5.08),5,17 However, an opinion that includes, asserts, or implies facts that are false and defamatory could result in liability.18 As noted previously, publication of an expression of opinion about a public figure may be protected under the “fair comment” doctrine (see also 5.9.2, Public and Private Figures).4,7 Fischer et al3(§5.08) offer the following questions to help distinguish statements of fact from statements of opinion:
▪ Can the statement be proved true or false?
▪ Are the facts on which the opinion is based fully disclosed to the reader?
▪ If not, are the facts on which the opinion is based obvious to a reasonable reader or readily available to the reader from other sources?
▪ Are both the disclosed and undisclosed facts on which the opinion is based substantially true?
▪ Does the context of the opinion suggest to a reasonable reader that it represents opinion and not fact?
▪ Have the statements that contain opinions been published in a manner that informs readers that they deal with opinion, commentary, or criticism (eg, a clearly identified editorial or opinion page)?
Editorials, Letters, and Reviews.
In some publications, such as newspapers and popular magazines, editorials, correspondence, and critical reviews tend to alert the reader that the content is opinion. This is not always the case for scientific journals. No matter where the material is published, malicious criticism of an individual or entity could be considered defamatory, especially if it is demonstrated that such criticism was not based on facts.7,18 However, criticism of a public figure or public institution or commercial entity may not be actionable if such criticism is scholarly and supported by evidence and documentation. Similarly, scholarly criticism of an individual’s research, theory, opinion, or previous publication that is supported by evidence and documentation may not be actionable for libel.15,16 In any case, editors and publishers should be cautious about statements critical of individuals or commercial entities made in editorials, letters, and reviews. Use of such phrases as “in my opinion” or “I believe” will not shield an author against an action for libel.7 Whenever possible, authors of letters, editorials, and reviews in biomedical publications should support opinions, assertions, and interpretations with documentation and/or formal references, and editors/publishers should review all such material and require authors to provide appropriate documentation and references. Editors and publishers should consider obtaining legal review of material being considered for publication that contains potentially libelous statements. In addition, publishers should have liability insurance that covers the costs of defending against suits for libel. (See also 5.9.7, Defense Against Libel, and 5.9.8, Minimizing the Risk of Libel.)
For reviews of books and other media (eg, CDs, videos, journals, and websites), well-documented critical comments about the book, media, or the work of an author, producer, editor, or publisher are generally acceptable, but critical comments about the author, producer, editor, or publisher should be avoided. In Moldea v New York Times Co,19 the author of a book that received a disparaging review in the New York Times sued the paper for libel after trying and failing to get the New York Times to publish his rebuttal letter. The book review included a number of critical comments, including a statement that the book contained “too much sloppy journalism to trust the bulk of this book’s 512 pages.”9 This comment was supported with specific examples of misspellings and allegations of mischaracterization of events.9 After an initial decision in favor of the New York Times, an appeal that favored the author’s claim, and an unusual reversal by the appeals court, the libel suit was dismissed. The final decision in this case reaffirmed impunity from libel suits for opinion pieces and provided a “workable test for analyzing allegedly defamatory statements of opinion”9 (see the beginning of this section).