Everyone’s a Critic: How the Opinions and Fair Comment Privileges Protect California Journalists
There is an old saying that everyone’s a critic, however, with access to social media and blogging, being a critic may well cost you a defamation lawsuit. The Internet gives you an instant audience that can, and will, both admire and criticize your work, and in some instances your personal life. Bloggers beware; writing statements that could damage a person’s reputation could land you in a lot of legal trouble. In California, journalists are protected from potential defamation lawsuits through several privileges, among them the opinion and fair comment privileges under which you can state opinions about others as long as they cannot be proven true or false. Vincent Cortez, local filmmaker of Mitchell Street Pictures, says, “Defamation can be a concern because that is when it becomes about someone trying to make you, the artist, look bad.”
In February 2008, the San Francisco Chronicle published the article titled “Web 2.0 defamation lawsuits multiply,” in which business reviews on popular websites, such as Yelp and college gossip sites were under fire for statements alleged defamatory reviews and statements. Five years later, in January 2013, a contractor who received a bad review on Yelp filed a $750,000 defamation lawsuit in Fairfax County, VA. Yelp’s Terms of Service specifically warn that the users are responsible for the content that they chose to publish and that they may be exposing themselves to liability if the content “contains material that is false, intentionally misleading, or defamatory.” Those same terms of service include and indemnity release and state, “California law will govern these terms.”
information allows for any comment or opinion to be attached to your name and work in search engines. The opinion and fair comment privileges protect online journalist in that the context and the circumstances under which statements are made are taken into account in a legal case of defamation. For example, in the case Global Telemedia International, Inc. v. Doe 1, statements made in a chat room were dismissed as opinion and protected under the privileges because the statements were full of exaggerations and “language not generally found in fact-based documents,” amongst other things.
While the first amendment protects our freedom of speech and the opinion and fair comment privileges make sure that journalist are protected from defamation lawsuits, we should not forget that when we write reviews we do so at our own risk. Cortez tells us that, “negative reviews can turn away potential interest in your project and even potential work for you as an artist.” Opinion and fair comment privileges do not protect against facts with the preface “in my opinion,” nor do they protect from false facts that may be implied.