PHOSITA

Authored by Alyssa Novak, August 18, 2016 at 5:44 pm
IP LAWSUITS

At the 2016 Rio Olympic Games, over 10,000 athletes are in the midst of competition for a chance at a singular moment of athletic glory. All of that pressure creates the temptation to boost one’s odds with performance enhancing drugs (PEDs).  However, if an athlete is caught—or even suspected of —using PEDs, his or her reputation may never recover. Take, for example, American 100-meter sprinter Justin Gatlin. Gatlin entered the Rio stadium this week to a cascade of boos because he had previously failed drug tests…ten years ago.

All of this is to say, having your name associated with doping is essentially social suicide for an athlete.  Thus, when three-time Olympic gold medalist swimmer Katinka Hosszu was accused of using PEDs in a magazine article, she brought a defamation lawsuit in federal court. On Friday, the case was dismissed with the court finding that the statements qualified as opinion, which is protected by the First Amendment, even though the author “clearly implied” that Hosszu was using PEDs:

[The author] never stated in the article that Hosszu has ever used performance-enhancing drugs, and ... his explicit caveats and his fair review of the facts on which his suspicions are grounded negate the possibility that he was affirmatively asserting as a fact that she has done so. He did not explicitly state—but he clearly implied—that he believes that Hosszu's performances should raise strong suspicions that she is using performance-enhancing drugs, and that he believes commentators should speak out about such suspicions. Such a 'statement' is not an assertion of fact. It is a personal opinion that is not susceptible of being proved true or false.

The court found that “clearly implied” constitutes opinion, not a statement of fact. This case is a good reminder that there is a fine line between fact and opinion in defamation cases. As a review, here are four factors that courts use to differentiate statements of protected opinion from those asserting or implying actionable facts:1

  • Whether the specific language at issue has a precise meaning which is readily understood or ambiguous.
  • Whether the statement is capable of being objectively characterized as true or false.
  • An examination of the full context of the communication.
  • A consideration of the broader social context or setting surrounding the communication including the existence of any applicable customs or conventions that may signal to readers or listeners that what is being read or heard is likely to be opinion, not fact.

For example, here are several cases in which remarks fell under the broad “opinion” defense:

  • Statements that “cannot reasonably [be] interpreted as stating actual facts,” meaning “loose, figurative, or hyperbolic language which would negate the impression that the writer was seriously maintaining” an actual fact, or where the “general tenor of the article” negates the impression that actual facts are being asserted.2
  • Statements that no reasonable jury could find are “anything but rank speculation, surmise or hyperbole.” 3
  • Statements viewed in the context of “[t]he culture of Internet communications, as distinct from that of print media such as [sic] newspapers and magazines, has been characterized as encouraging a freewheeling, anything-goes writing style. . . . [B]ulletin boards and chat rooms are often the repository of a wide range of casual, emotive, and imprecise speech, and . . . the online recipients of [offensive] statements do not necessarily attribute the same level of credence to the statements [that] they would accord to statements made in other contexts.”4

As you can see, it is crucial to remember the context in which the remarks were made. For example, in Hosszu’s case, the magazine had designated the content as “commentary.”  The good news for Hosszu—she is taking home three gold medals that will certainly mitigate the loss in court.

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1 Immuno AG v. J. Moore-Jankowski, 77 N.Y.2d 235 (1991).

2 Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990).

3 Mar-Jac Poultry, Inc. v. Katz, 773 F. Supp. 2d 103.

4 Sandals Resorts Intl. Ltd. v Google, Inc., 86 A.D.3d 32.

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