Lawyer’s Defamation Suit Over Online Insults Dismissed; Allegedly Defamatory Comments Constituted Non-Actionable Opinion

Field v. Grant, 10-23898 (Sup. Ct. Suffolk Cty. 2010):

After attorney Gary P. Field discovered that someone was anonymously posting comments about him on two websites (Ripoff Report and LawyerRatingZ), Field sued the suspected author of the posts – Robert Grant, the ex-husband of one of Field’s clients – for defamation. The postings included statements that (1) Field was a “fool … who practices fraud”, “the … worst attorney licensed to practice” in New York, and “dumb”, (2) Field “screwed up my divorce”, and (3) implied that Field had testified falsely under oath. Field argued that these comments constituted libel per se, because they charged him with making false statements under oath, and were made with intent to injure him in his business and/or profession.

Field moved to compel production of Grant’s personal computer hard drive; Grant cross-moved to dismiss Field’s complaint (pursuant to CPLR 3211(a)(7) on the ground that it failed to state a cause of action) and sought sanctions against Field. In its December 29, 201 decision, the court granted Grant’s cross-motion and dismissed Field’s complaint; denied (“as academic”) Field’s request for discovery; and denied Grant’s request for sanctions. The website postings, held the court, amounted to non-actionable “opinion”.

In New York, a plaintiff alleging defamation must establish the following elements: “[A] false statement, published without privilege or authorization to a third party, constituting fault as judged by, at a minimum, a negligence standard, and it must either cause special harm or constitute defamation per se”.

However, the court continued:

“Expressions of opinion, as opposed to assertions of fact, are deemed privileged and, no matter how offensive, cannot be the subject of an action to recover damages. … Context is the key as assertions that a person is guilty of blackmail, fraud, corruption and the like in certain contexts have been found to be understood by the reader or listener to be rhetorical hyperbole or vigorous epithet. … The court’s determination should be based on its consideration of the overall context in which the assertions were made and determined on that basis whether the reasonable reader would have believed that the subject statements were conveying facts about the plaintiff or the opinion of the writer or speaker. … The nature of the forum is equally important. … If the language employed constitutes a general reflection on a person’s character or qualities, it is not a matter of such significance and importance as to amount to defamation.”

Applying these principles, the court found that the complained of comments were “not actionable as they constitute mere opinions of the writer” and that “[v]iewed in the context in which they were relayed and the website forums on which they were posted, the comments constitute pure opinions which cast general reflections upon the plaintiffs character and/or qualities which are not a matter of such significance and importance so as to amount to actionable defamation”.