In: Economics
essay question
What factors have courts considered when evaluating factual statements versus opinion-based statements? Could there still be liability for purely opinion-based statements?
The Supreme court stated that the firsr amendment required a distinction between statement of fact and the statement of opinion.The inherent indeterminacy of words and thesubjectivity of interpretationmakes the fact \ opinion distinct. Politically free speech is necessary in democratic governance,the freedom to form ,communicate one's own opinion is amust in the forming of individual and common judgement.The distinction between fact and opinion made under the common law of fair comment.Courts were however unable to agree on how the distinction between fact and opinion should be made.Some courts simply refused to make the distinction.The first case which the United States Supreme Court expressly addressed the fact/opinion distinction was Greenbelt cooperative Publishing Assoc vs Bresler.
"A fact "in its basic form refers to
a tangible objectbut opinion can not be compared to a physical
object to determine the relation between the two. Factual
statements are true or false independenty of any value judgements
but opinions may deal with subject matters in which there is no
conclision, it is not always easy to determine wether it is a pure
opinion. In general the facts are statements that can be proven
true or false opinions are believes or ideas. Courts will look at
the context and medium in which the alleged defamation occured. For
example, a statement is more likely to be regarded as an opinion
rather than a fact if it occurs in an editorial blog as opposed to
a piece of investigative journalism.
The factors courts often use to determine whether a statement is a
protected opinion are:
1. What is the common usage and specific meaning of
the language used?
2. Is the statement verifiable? Can it be proven
false?
3. What is the full context of the
statement?
4. What are the social conventions surroundings the
medium the statementoccured in?
Note that each state decides what is required to establish
defamation and what defences .
The court analyise the statement of opinion under its two potential
bases for liability ;;;;
1. The prohibition on making an untrue statement of
material fact.
2. The prohibition on omitting material fact
necessary to make a statement not misleading.
Lower courts seem confused about what
to do with the supreme court findings of fact some courts deny
being bound by the factual findings of highing courts.
The US supreme Court ruled today that a statement of opinion in a registered statement cannot ba actionable as amisstatement of fact uner sec 11 of the Securities Act1933 if the assure actually believed the opinion expressed.It clarifies the liability under this section.The court announced important principles for interpreting the application of the two bases for liability unde section 11 as fallows;;
A) The statement of "pure opinion" that turns out to be wrong cannot be a basis for section11 liability as" an untrue statement of material fact .If the issuer honestly believed the opinion when making.The court observed that section 11 is not an invitation to monday morning quarterback an issuer's opinion"
B) A statement of opinion ,however, could be actionble under section 11 as meterially misleading if the rgistration statement omits material facts about the bases for the issuer,s opinion that a reasonable investor,upon consideration of the totally of information disclosed,would infer from the opinion and such omitted material facts are untrue.
This has a significant implications for the litigation of sec 11 claims challenging statement of opinion and for the preparation of registration of of statement disclosure.The courts indicated the statements started with "we believe" and " we think" would br identified as purely opinions,these statements will mislead audience and support sec 11.
The supreme court clarified the circumstances in the case Omnicare,Inc.v.labourers.