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What is the difference between fact and opinion in defamation?

San Jose, CA |

and when either being mindful while writing/saying a comment or stating your case in court after you've already been sued, how much evidence do you need to support your case? Obviously for the important facts you would need evidence but there are always minor details for which the defendant discloses that he/she doesn't actually have evidence for, such as spoken words or chat messages, or evidence that the plaintiff possesses (and could easily deny). Is it recommended to state EVERYTHING that happened, regardless of whether you can prove it or not?

Please attorneys who are experienced with this matter comment only as this seems to be a commonly misunderstood topic.

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Attorney answers 2


Defamation requires a false statement of fact not opinion, and the distinction may be hard to discern without a defamation lawyer reading the statements.

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The party making a defamation claim (plaintiff) must ordinarily prove four elements:

1. A publication to one other than the person defamed;
2. A false statement of fact;
3. that is understood as
a. being of and concerning the plaintiff; and
b. tending to harm the reputation of plaintiff.
4. If the plaintiff is a public figure, he or she must also prove actual malice.

A statement of Opinion cannot be defamatory, but merely labeling a statement as your opinion does not make it an opinion. Courts look at whether a reasonable reader or listener could understand the statement as asserting a statement of verifiable fact. (something stated that is capable of being proven true or false.) This is determined in light of the context of the statement. A few courts have said that statements made in the context of an Internet bulletin board or chat room are highly likely to be opinions or hyperbole, but they do look at the remark in context to see if it's likely to be seen as a true, even if controversial, opinion ("I really hate Lady Gaga's new song" ) rather than an assertion of fact dressed up as an opinion ("It's my opinion that Jim is the hacker who broke into the office's restricted database").

Legal disclaimer:This message does not constitute legal advice and does not create an attorney-client relationship. Any statements are made for general informational purposes and do not constitute legal advice. No attorney-client privilege is created by this communication. Attorney is licensed in California only.

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