In the U.S. could I be found liable for defamation for telling persons A, B, and C that person A "lacks professionalism and integrity?"
3 Answers
This particular statement ("Person A lacks professionalism and integrity") may be protected because it isn't sufficiently factual to be susceptible of being proved true or false.
Milkovich v. Lorain Journal Co. established that the test is whether "a reasonable factfinder could conclude that the statements [...] imply [a defamatory assertion]". The court mentioned that "loose, figurative, or hyperbolic language" would negate the impression that "[the speaker] was seriously maintaining [the defamatory claim]. The court also considered "the article's general tenor". It also emphasized that the statement was "sufficiently factual that it is susceptible of being proved true or false".
Said in other ways:
- Is the statement "sufficiently factual to be susceptible of being proved true or false"?
- Can the statement "reasonably be interpreted as stating actual facts about an individual"?
Specifically regarding an accusation of "unprofessionalism", an example is Tasso v. Platinum Guild Int'l, 1998 U.S. Dist. LEXIS 18908 where the court finds "As to the statements that plaintiff was 'unethical, untrustworthy and unprofessional' and 'incompetent,' I find them to be non-actionable statements of opinion based on disclosed facts". Likewise in Wait v. Becks 241 F. Supp. 2d 172 "Statements that someone has acted unprofessionally or unethically generally are constitutionally protected statements of opinion", and it is also pointed out that "Walsh disclosed the facts upon which his statement that plaintiff was unprofessional and/ or unethical was based". In Piccone v. Bartels 785 F.3d 766, defendant states to third parties that plaintiff engaged in "unprofessional conduct". The court allows that
in some contexts, a statement that a person has acted unprofessionally, without explanation, might imply the existence of undisclosed defamatory facts concerning a sufficiently objective standard of conduct.
That is, "unprofessional" could mean "violated professional ethics", which could be defamatory. In the instant case, there was no allegation of violation of technical professionals, and thus "Defendant's statements regarding his impression of Plaintiffs' professionalism were not actionable under defamation law".
Something that helped all three defendants in these cases is that they also stated their basis for finding plaintiff to be "unprofessional", and they did not leave it up in the air whether they were falsely accusing the plaintiff of violating concrete professional standards. Since professional competence and honesty are essential to the professional reputation of an accountant, such an accusation might sail close to the wind of defamation. A defense could then focus on the exact phrasing, contrasting "acted unprofessionally" (interpretable as an accusation of a specific and verifiable wrong act) with "lacks professionalism" (a general and unverifiable opinion as to the person's character).
Expressions of opinion are not defamatory; to be defamatory the statement must be untrue and an opinion cannot be. As it stands, if this statement is made in isolation, it is probably an opinion. If you proceeded to enumerate the reasons why you hold this opinion, then it starts to move more towards a statement of truth or untruth.
Of course, if the court was convinced that they were, in fact, unprofessional and lacking in integrity, then that is not defamation either.
Also, defamation requires making an untrue, derogatory statement to a third party. Telling someone they are a no good thief with the morals of an alley cat is not defamatory; telling someone else is.
