There’s a famous quote from President John Adams that goes like this:

Facts are stubborn things; and whatever may be our wishes, our inclinations, or the dictates of our passion, they cannot alter the state of facts and evidence.

When it comes to distinguishing between defamation and opinion, the question of fact – and the immutability of fact – is very important. That’s because defamation involves making false statements that cause harm to reputation. Opinions can lead to the same kind of harm, but there’s a world of difference between somebody expressing an opinion and knowing telling a lie.

To illustrate the difference between the two, let’s look at the example of a restaurant review.

If the author of a review were to publish an article saying that a restaurant’s soup of the day tasted or looked like something the cat dragged in, that would represent an opinion. It could certainly impact business — or at least soup sales — but it would be an opinion and protected speech. If, however, the reviewer wrote that the soup was rancid, or that it contained spoiled ingredients (or worse), then (unless the soup contained those unpalatable components and the review was an expose), the restaurant’s owner would have a strong defamation case – especially if they could show that after the defamatory review was published, business fell off sharply.

To successfully bring a defamation lawsuit, the party that suffered damage as a result of false statements will need to prove several things:

• That the statements were false but offered as fact
• That the statements were published or communicated to a third party
• That the person making the statement was negligent in asserting it as fact
• That the subject of the statement suffered harm to their reputation as a result.

In our example above, the author expressing their opinion about the soup’s taste or appearance is far from asserting as fact that the chef’s cat was assisting in sourcing ingredients and may even represent an attempt at a joke. But by writing that the soup contained unpalatable or spoiled ingredients, without investigation and proof that was the case, then the statements rise to the level of defamation and clearly would cause harm to the restaurant’s reputation.

Defamatory remarks can have a devastating effect on a business’s success, and opinions can too. That’s one reason why review websites have become so popular and powerful. But there’s a big difference between opinion and defamation, and before you pursue a defamation claim it’s important to be sure of whether the harmful statements rise to the level required by law. If you need help assessing your situation, contact us today to set up a time for a consultation.