I believe that a group of businesses is engaging in anti-competitive behavior and that they are acting in a coordinated effort to maintain artificially-inflated prices and are publishing dishonest advertising through third parties to bring customers to them.

I would like to start a similar business in their area offering the same service at a significantly lower rate, and station someone in front of their places of business who would approach clients and let them know about our service and the relative rate difference etc. I would also like to tell these clients about the anti-competitive and dishonest behavior that we believe those businesses are engaged in, and that this is the reason for the significant difference in rates for the service.

I understand that if we were to say:

These businesses are engaging in anti-competitive behavior and have attracted you through dishonest advertising.

that we would likely have a burden of proof in any defamation claim.

But if we state the true facts more accurately in this way:

We believe that these businesses are engaging in anti-competitive behavior and have attracted you through dishonest advertising.

Would we still have some potential burden of proof (to prove the belief, not to prove the behavior itself?) in a defamation claim? Or are we free to believe whatever we want? What if the behavior can be proven false?

  • 1
    For What country?
    – davidgo
    Jul 27, 2018 at 5:00
  • Any common law country
    – user18924
    Jul 27, 2018 at 5:35
  • 2
    My apologies, but that being the case, I've voted to close the question as too broad. There are substantial differences between common law jurisdictions - to the point where in some places truth is not an absolute defense against defamation (techdirt.com/articles/20090224/0147393882.shtml), as are standards of proof, who needs to prove what etc (quora.com/What-are-the-differences-between-UK-and-US-libel-laws) for a start.
    – davidgo
    Jul 27, 2018 at 5:43
  • Maybe, but I'm not asking about procedure or defenses. What constitutes defamation (i.e. the elements) I assume would be part of common law, and not in some local state legislation.
    – user18924
    Jul 27, 2018 at 7:17
  • 2
    The common law is different in different jurisdictions. Some of this is influenced by the fact that the U.S. and many U.S. states have constitutional limitations on defamation actions which are not present in countries such s Canada, Australia, New Zealand, Scotland, Ireland, and England & Wales.
    – ohwilleke
    Jul 27, 2018 at 14:44

2 Answers 2


Can a statement of one's beliefs constitute defamation if those beliefs can't be proven true?

You might think that it is impossible to prove what's going on in your mind. But this is done all the time. Thoughts can be inferred from words and actions. For example, theft requires an intent to permanently deprive someone of property. If someone hides merchandise under their shirt and proceeds to the exit, there's generally not a reasonable doubt about whether they intended in their mind to steal it.

Defamation laws vary by state. However, the First Amendment sets a baseline that all states must follow.

Defamation requires a false fact. Pure opinion is not defamation. However, it is possible to defame via a statement which is an opinion, if that opinion implies undisclosed facts which are false. If you say that you "believe" the companies are deceptive, this clearly implies you know something that makes you believe that.

You can get around this by disclosing the entire factual basis for your opinion. If you say that the New York Giants are deceptive because their stadium is actually located in New Jersey, that's not defamation, because people can judge for themselves whether that's actually deceptive. But if the team was actually located in New York, you could be liable.

Would we still have some potential burden of proof

The burden of proof is on the plaintiff, but it's only preponderance of the evidence in most cases, meaning the jury just needs to find it 50.001% likely that you are liable. But if the plaintiff in a defamation case is considered a "public figure" the standard of proof is raised, and they must prove by "clear and convincing evidence" that you acted with "actual malice" (which more or less means that you didn't actually believe what you were saying.) According to this paper it's an open question as to whether a corporation can be a public figure (although I don't know if their analysis is still valid since it's from 2001); the answer might depend on which circuit you are in, and even if you know how your circuit has decided the matter, the Supreme Court might rule the other way. And if your case goes all the way to the Supreme Court, you're going to be paying a lot of legal fees over the course of many years.

You should also know that even if it's not defamation, you might not be off the hook. There's something called "tortious interference of business". If you're going to literally have people stand in front of businesses to try to drive their customers away from them and to you, I would highly suggest you get a lawyer from your area to determine whether and how you can legally do this.


Can a statement of one's beliefs constitute defamation if those beliefs can't be proven true?

I strongly discourage you from imputing to others dishonesty unless you can readily prove your statements, or --at the very least-- the basis on which you premise them. In and of itself, a generalized overpricing of a good or service is insufficient proof of price rigging.

In many U.S. jurisdictions, false imputations of dishonesty are defamatory per se (that is, defamatory regardless of the context), the outcome being that the defamed person or entity is entitled to relief even without proof of being harmed by the defamatory falsehoods.

Framing your statement as opinion or belief makes little or no difference. See this excerpt from Milkovich v. Lorain Journal Co., 497 U.S. 1, 18-19 (1990).

are we free to believe whatever we want?

Yes, you are, but that does not necessarily preempt possible liabilities. If your speculative statement is linked or traceable to efforts to attract customers to your business, then that would strengthen the notion that you acted with ulterior motives rather than an honest or reasonable belief.

Most important, from your inquiry it follows that you don't even need to resort to speculation about others' dishonesty or anti-competitive behavior. A marketing emphasis on the rate difference, which would be objectively verifiable, will entice consumers to try whether the good or service your business offers is of comparable quality as that by the competitors.

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