Opinion vs. Fact – are all those Internet Blogs and Reviews Protected Speech?
The world has always been filled with people having an abundance of opinions on every imaginable subject . . . and most are all too willing to share those opinions regardless of whether anyone actually asked them to! In today’s age of social media, sharing one’s opinion or posting a review on a variety of internet sites is not only an easy endeavor, it is the norm. Of course every business welcomes a great review from a happy patron, but what about the less-than-kind opinions posted by the unhappy campers who feel compelled to share their disappointing experiences with the world at large? Does the First Amendment’s “free speech” clause protect an individual who posts a scathing review on the internet, which has a tendency to injure another in his or her occupation, business or employment?
In 2016, the Florida Fourth District Court of Appeal affirmed an award of $350,000 in favor of a divorce attorney stemming from a libel action that the attorney filed against her former client and the client’s ex-husband. The lawsuit was based on several contemptuous internet posts made about the attorney’s representation of the wife in the divorce proceeding. (An oral defamatory statement is “slander” and a written one is “libel”; obviously cases involving cyber defamation fall into the latter category.)
At trial, the defendants argued that their internet reviews of the attorney’s professional services constituted statements of opinion and were therefore protected by the First Amendment and not actionable as defamation. The Court disagreed.
Although it is true that one’s opinion is never defamatory, simply labeling what you express to others as an “opinion,” does not necessarily make it so. Generally speaking, for defamation to fall outside the First Amendment’s protection of “opinion” communications – whether published in cyberspace or elsewhere – the offending words must be (1) factual in nature and (2) false. This means that if ones “opinion” is not simply offering a belief or conveying a legitimate criticism about a person, business, or service, but rather has content with a factual basis that is completely untrue, then defamation may have occurred. Of course for money damages to enter the equation, the “false facts” must actually cause harm or result in an injury to someone’s personal or business reputation.
Truth is always a complete defense to a claim of defamation, so if your opinion is laced with “facts” that are true (actually occurred and are verifiable), there is no defamation, regardless of any resulting harm. Statements of pure opinion are not actionable. However, if your so called statements of opinion are really just clothing assertions of false facts, like the trial court found in the attorney’s libel action, then be prepared to pay damages.
Several of the reviews posted by the defendants on the internet claimed the attorney had “no integrity” and “misrepresented her fees with regards to the contract . . . initially signed” by “charging 4 times her original quote with no explanation.” Although a comment about someone having “no integrity” by itself reflects an “opinion,” the client’s comments concerning how the attorney fees were calculated are factual allegations. The undisputed evidence at trial showed the client initially signed a retainer agreement to pay her attorney $300 an hour – which is the exact amount the attorney used to calculate her bill throughout her representation. Moreover, both defendants admitted that the attorney did not charge 4 times more than what was quoted in the signed agreement. Accordingly, the Court found that the internet reviews, “are factual allegations, and the evidence showed they are false.” Relying on a Florida Supreme Court case from 1974, the Fourth District Court concluded that, “there is no constitutional value in false statements of fact.”
For more information about defamation in cyberspace or elsewhere, call the experienced attorneys at Boynton Law, P.A. for a free consultation.
