Types of Potentially Defamatory Statements
Module 5: Defamation
Opinion versus statements of fact
We discussed above factual statements that may be defamatory. However, expressions of opinion are differentiated from factual statements. General Comment No. 34 states that defamation laws, particularly penal defamation laws, “should not be applied with regard to those forms of expression that are not, of their nature, subject to verification,”(1) such as opinions and value judgments. It also notes: “All forms of opinion are protected, including opinions of a political, scientific, historic, moral or religious nature.”
To determine what counts as an opinion, courts tend to look at whether a reasonable person would understand the statement as asserting a statement of verifiable fact, which is capable of being proven to be true or false. In the context of social media, a reasonable reader tends to be defined as someone who would ordinarily be following and reading the statement. The Singapore High Court has applied a somewhat broader definition of the ‘ordinary reasonable person’ as someone “assumed to possess general knowledge and experience of worldly affairs”.(2)
The context in which the statement was made is critical to determining whether a reasonable person would understand it as an opinion or as a statement of fact. There are, for example, ways in which a statement of opinion may appear to be factual in nature.(3) In 2020, a US District Court dismissed a defamation lawsuit against controversial Fox News talk show host Tucker Carlson, noting that the “‘general tenor’ of the show should then inform a viewer that [Carlson] is not ‘stating actual facts’ about the topics he discusses and is instead engaging in ‘exaggeration’ and ‘non-literal commentary.’”(4)
Similarly, content that a reasonable person would identify as humour or satire, rather than as stating a fact, should also be treated as an opinion. For example, the Malaysian Court of Appeal has stated that:
No reasonable person will read a cartoon with the same concentration, contemplation and seriousness as one would when reading a work of literature. Cartoons exaggerate, satirize and parody life, including political life. […] The political cartoonist, unlike the serious political pamphleteer, seeks to ridicule persons and institutions with humour to deliver a message. It will be most exceptional if a political cartoon will have the effect of disrupting public order, security or the safety of the nation.(5)
Malaysian Court of Appeal, Zulkiflee Bin SM Anwar Ulhaque v. Arikrishna Apparau (Zunar Case),
Civil Appeal No. W-01-500-2011 (2014).
The Supreme Court of India came to a similar conclusion in respect of a film containing a song that was deemed offensive to the Bata India footwear company, concluding:
[T]he song appears to have been written in the context of the theme of the film and ought not be taken as any kind of aspersion against the persons named in said song.
Bata India Limited v. Prakash Jsh Prodcutions And Others, (Record of Proceedings), SLP (C) No. 32998 (2012) (accessible at: https://www.casemine.com/judgement/in/56e0fa97607dba3896607a0a).
Statements of Others
A point of consideration, particularly for journalists, is the extent to which they are liable for repeating defamatory statements of others since a central part of their work is reporting on the words of others. The European Court of Human Rights (ECtHR) has found that a journalist is not automatically liable for quoting opinions of others, and is not required to “systematically and formally” distance themselves from “the content of a statement that might defame or harm a third party,”(6) provided they have not repeated potentially defamatory statements as their own, endorsed, or clearly agreed with them.
Privileged statements refer to certain statements which receive protection against defamation liability due the public interest in this based on the circumstances in which they were made. Statements from legislature or judicial proceedings are usually considered absolutely privileged, meaning that neither the author of the statement nor a fair media report on it may be held liable for defamation. A number of other statements which involve social or moral responsibilities – such as giving a reference on someone or reporting a crime to the police –also enjoy qualified privilege, which means they are protected unless they were made with malice.
Whose Burden of Proof?
A general principle of law is that the burden of proof lies with the claimant — the person who brings the suit or makes the “claim”. However, with defamation, this principle is generally reversed, and the responsibility lies with the defendant — the person who made the allegedly defamatory statement — to prove that the statement did not damage the claimant’s reputation, either because it is true or for one of the other reasons listed above. The United States is a prominent exception to this rule, wherein the burden of proof of falsity of the statement in cases brought by any public figure falls on the claimant.
However, in defamation cases concerning the public interest, international standards have been evolving towards the US approach to the burden of proof, as articulated by the Supreme Court in New York Times v. Sullivan.(7) The special international mandates on freedom of expression have called for the burden of proof to be on the plaintiff in such cases. For example, in their 2000 Joint Declaration, they noted that “the plaintiff should bear the burden of proving the falsity of any statements of fact on matters of public concern”.(8) The UN Special Rapporteur on Freedom of Expression has also affirmed that “where truth is an issue, the burden of proof lies with the plaintiff”.(9) Nevertheless, a clear consensus on this approach has not yet emerged, with the European Court of Human Rights’ dismissing arguments to adopt the Sullivan approach in their 2002 judgment in McVicar v. United Kingdom.(10)
Remedies and Penalties
As discussed above, criminal penalties have been the focus of much attention by international bodies. It is notable that no international human rights court has ever upheld a custodial sentence imposed on a journalist. It is important that civil defamation laws contain sufficient checks and balances on the size of damage awards to prevent them from unduly stifling freedom of expression.