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It is understandable that if Bob says "Rob murdered Alice", Bob will be liable for defamation unless he can prove that Rob indeed murdered Alice on the preponderance of evidence (this is true even if Rob has been acquitted of murdering Alice — because the standard of proof in the criminal trial would have been much higher than in the defamation case).

But what if Bob instead publishes a hypothesis that Rob murdered Alice: he analyses the well known facts about Rob, Alice and the circumstances of her death, and concludes that those facts are consistent with Alice being murdered by Rob?

Would Bob be still liable for defamation? Or does the form of hypothesis reasonably based on facts (vs outright accusation) save him from that trouble?

(Any jurisdiction)

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  • Comments have been moved to chat; please do not continue the discussion here. Before posting a comment below this one, please review the purposes of comments. Comments that do not request clarification or suggest improvements usually belong as an answer, on Law Meta, or in Law Chat. Comments continuing discussion may be removed.
    – Dale M
    May 25, 2023 at 2:43
  • Are you talking about while the murder trial is on-going or after Rob has been acquitted? Also what is the difference between publish a hypothesis and an outright accusation? As in, would it be more than just starting your article with "Here is my hypothesis" ?
    – komodosp
    May 25, 2023 at 8:37
  • @komodosp Whether Rob is charged/tried should be irrelevant because of the difference in standard of proof. For the difference between a hypothesis and a statement of fact (i.e. outright accusation) see the definition of hypothesis.
    – Greendrake
    May 25, 2023 at 8:46
  • @Greendrake - I ask because some jurisdictions have laws against expressing any opinions about a trial while it's ongoing, though admittedly that might be more about obstruction of justice than defamation specifically.
    – komodosp
    May 25, 2023 at 9:04
  • @Greendrake - for clarity, I know the difference between a hypothesis and a statement of fact, my question is more about how the distinction would appear in your article.
    – komodosp
    May 25, 2023 at 9:07

3 Answers 3

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The aspects of a defamation claim that seem to be in issue are the following:

Your statement of the scenario is somewhat ambiguous for the purposes of the above analysis:

But what if Bob instead publishes a hypothesis that Rob murdered Alice: he analyses the well known facts about Rob, Alice and the circumstances of her death, and concludes that those facts are consistent with Alice being murdered by Rob?

It matters whether Bob:

  • simply publishes "Rob murdered Alice", Bob's hypothesis
  • publishes "Rob murdered Alice" accompanied with language or context that communicates that it is merely a hypothesis
  • publishes the underlying facts, the analysis, along with the conclusion of consistency

Your description is ambiguous because despite talking about Bob's methodology in arriving at his conclusion, you don't clearly say that he publishes that along with the hypothesis.

The plaintiff's threshold burden: Is the statement defamatory?

Depending on the precise content of the published statement it may meet the low threshold of tending to lower the reputation of the subject in the eyes of a reasonable person.

If it does, then the burden will flip to the defendant to establish a defence, such as truth or fair comment. Of these, based on the methodology you have described, I view fair comment as the more directly applicable defence, but it does really depend on what the content of the publication is.

Fair comment defence

The test for fair comment is:

(a) the comment must be on a matter of public interest;

(b) the comment must be based on fact;

(c) the comment, though it can include inferences of fact, must be recognisable as comment;

(d) the comment must satisfy the following objective test: could any [person] honestly express that opinion on the proved facts?

(e) even though the comment satisfies the objective test the defence can be defeated if the plaintiff proves that the defendant was [subjectively] actuated by express malice.

For a fair comment defence, the receivers of the impugned statement must be able to identify the underlying facts on which the statement is based. Therefore, it would not be enough for the hypothesis to be "reasonably based on facts"; those facts need to be also published to the listeners/readers and a reasonable listener/reader needs to be able to associate the impugned statement as being based on those.

Another component of the fair comment defence is that the statement must be one of opinion, not fact. If the statement, considered in its full context, is not amenable to empirical verification or falsification, then it is a statement of opinion.

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I will not address procedure in detail because to be frank it’s really subtle and way beyond my knowledge - it is full of technical points in favor of the defendant (intentionally, it makes SLAPPs harder). All I will say about it is that it ends up treated as a criminal rather than civil matter. The plaintiff must porter plainte (press criminal charges), which triggers a criminal procedure, in which they then make a constitution de partie civile (become a civil party to the case), and they get reparation only if the criminal trial convicts the defendant.

The statutory basis is article 29 of the 29 July 1889 law about freedom of the press:

Toute allégation ou imputation d'un fait qui porte atteinte à l'honneur ou à la considération de la personne ou du corps auquel le fait est imputé est une diffamation. La publication directe ou par voie de reproduction de cette allégation ou de cette imputation est punissable, même si elle est faite sous forme dubitative ou si elle vise une personne ou un corps non expressément nommés, mais dont l'identification est rendue possible par les termes des discours, cris, menaces, écrits ou imprimés, placards ou affiches incriminés.

Any factual claim that attacks the honor or standing of another person or group is libel. Publishing or reproducing that claim is punished, even if put as a question, or if the person or group is not readily named but is identifiable [via the context].

Note that "diffamation" (translated above by "libel") is constituted as soon as a claim is factual and objectively disgraceful, regardless of whether the claim is true, or whether it attracts liability. It is common to have the losing instigator of a SLAPP to claim a "victory" against journalists, quoting a part of the verdict where tribunal recognizes the claims to be "diffamatoires" ("libelous"). This sometimes fools the public into thinking that the factual claims were false, even if the tribunal made no such determination, and in fact might have made the opposite determination in another part of the verdict. I will use the English term "defamation" for the common English meaning of "factual claims published in violation of the law" and the term "libelous" for the French legal meaning of "factual claims that attack one’s honor or standing".

Claiming that someone committed a crime is a factual claim that "attacks the honor or standing". That claim need not be written out explicitly, if a reasonable reader would deduce it. That would depend a lot on the exact wording, but "I observe fact A, fact B, fact C, and I have the feeling that all of it leads to the conclusion that Rob murdered Alice" is going to be treated as a claim that Rob murdered Alice.

Now, we move onto the affirmative defenses to defamation. One defense is the exception of truth, where the defendant must prove the allegations to be true or substantially true; however, in the case at hand, they are not going to be able to do it.

Another defense is a creation of case law, the exception de bonne foi (good-faith defense). The general feeling is that it is similar to the US "actual malice" standard in reverse, where the defendant must prove that he or she made significant efforts to verify the truth of the matter, and was measured in their expression. Because it is a creation of case law, it is difficult for a non-expert such as myself to be quite sure of the limits (also, I was told that in recent years, there was a trend towards larger freedom of speech due to ECtHR influence).

An example case would be Cour de Cassation, Chambre civile 2, du 24 février 2005, 02-19.136, according to which good faith requires some objective prudence in the way the assertion is made. A tabloid-style newspaper published an article attacking a singer. A lower-court dismissal was reversed by the Cour de Cassation:

Attendu que les imputations diffamatoires sont réputées de droit faites avec intention de nuire et que cette présomption n'est détruite que lorsque les juges du fond s'appuient sur des faits justificatifs suffisants pour faire admettre la bonne foi ; (...)

Attendu que pour les débouter de leurs demandes, l'arrêt retient que (...) la bonne foi s'apprécie en fonction du genre du journal (...)

Qu'en statuant ainsi, alors que le caractère provocateur et sarcastique du magazine dans lequel avait été publié l'article litigieux ne dispensait pas des devoirs de prudence et d'objectivité, la cour d'appel a violé les textes susvisés ; (...)

Given the presumption that libelous claims are not made in good faith [i.e. good faith is an affirmative defense], and rebutting that presumption requires that justifying elements be given; (...)

Given that to dismiss the case, the verdict holds that (...) good faith is appreciated based on the type of journal [i.e. based on context] (...)

By ruling so, although the provocative and sarcastic nature of the publishing newspaper did not remove the need for prudence and objectivity, the lower court did not follow the law; (...)

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The fact that a statement is made in a form other than an assertion of fact is not an absolute defense to a defamation claim in the U.S., if the statement can fairly be understood as a veiled or coded statement of fact.

This is for the trier of fact (usually a jury) to decide if a judge determines that a reasonable juror could interpret the statement in this way.

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