Element #1: Falsehood

The three elements of defamation are falsehood, fault, and harm. Falsehood sounds simple: defamation involves a false statement. If what you said was true, it wasn’t defamatory.

If only it were that simple…

Only verifiable statements of fact can be false

A statement is only false if it makes a factual claim that can be objectively proven or disproven:

  • Morgan is 37 years old.
  • Morgan has seriously injured four students.

Statements that are not verifiable cannot be defamatory:

  • Morgan is a jerk.
  • Morgan’s classes aren’t interesting.

Substantial truth

A statement is not false if it is substantially true: minor factual errors are permissible so long as they don’t change the gist of the statement. This is highly subjective—here are some examples of statements that courts have found to be substantially true:

  • Saying someone had beaten his dogs with metal rods when in fact he had beaten them with wooden rods2.
  • Saying someone was sentenced to death for six murders when in fact he was sentenced to death for one murder3.

Hyperbole is not defamatory

Hyperbole is an extreme exaggeration that is understood to be rhetorical rather than a factual statement. Hyperbole is generally not defamatory:

  • Morgan can injure a student just by looking at them.
  • Morgan is the worst teacher in the entire world.

Even though hyperbole is technically not defamatory, we recommend avoiding it. Sticking to the facts is safer and more ethical.

People for Ethical Treatment of Animals v. Berosini, 895 P.2d 1269 (Nev. 1995)
Stevens v. Independent Newspapers, Inc., 15 Media L. Rep. 1097 (Del. Super. Ct. 1998)

Pure opinions are not defamatory

Opinions are not defamatory because they are not statements of fact. A pure opinion expresses your personal belief about a subjective matter:

  • Morgan seemed really careless to me.
  • I found Morgan’s class boring.

A statement that expresses a personal interpretation of true facts is very likely an opinion:

  • Because Morgan has injured three students, I think they’re unsafe.
  • Because Morgan isn’t a certified yoga instructor, I think they’re a bad teacher.

You cannot turn a factual statement into an opinion just by saying “It is my opinion that…”. These are statements of fact, not opinions:

  • I believe Morgan has injured three students.
  • It is my opinion that Morgan is not a certified yoga instructor.

An opinion must not imply untrue facts. Saying “it is my opinion Morgan has a bad safety record” implies you have heard compelling evidence to that effect. If that isn’t the case, the statement is likely defamatory.

See Use Pure Opinion for practical applications.

Quoting a defamatory statement

Pay attention! This is surprising to a lot of people and it’s easy to make a mistake here. Quoting a defamatory statement is usually defamatory, even if the quote is accurate:

  • Blair says Morgan has injured three students.

Even if Blair really said that, the statement would be defamatory if Morgan hadn‘t injured three students. However…

Neutral report privilege

Neutral report privilege allows the media to quote prominent sources when making an unbiased report about a public controversy, even if those sources are wrong. The law around neutral report privilege is complicated and not fully resolved: tread carefully here.

In the context of consent activism, it isn’t clear how the courts would define “media”, “prominent sources”, or “public controversy”.

Fair report privilege

Just to keep you on your toes, fair report privilege is completely different from neutral report privilege. It is a narrow but solidly established privilege that protects the media when they report on or republish official government statements or proceedings.

Fair report privilege may provide important protection for reporting someone’s criminal history, but is otherwise of limited relevance to consent activism. Fair report privilege is an absolute privilege in Washington.


This work is licensed under a Creative Commons Attribution-ShareAlike 4.0 International License.