“I am going to sue you for libel!!! A not uncommon threat in our multi-faceted media and digitalized-legal landscape. Ironically, as a recent case illustrates, there may be greater defenses to defamatory statements made in Court than to those made on Facebook.

NTC Collision Services, Inc. and Edward Baecher sued Michael E. Archer alleging that a statement made on Facebook constituted libel per se and/or that the statement was false, defamatory, and constituted libel innuendo. Archer moved to dismiss the complaint on the ground, among others, that the statements were based upon pure opinion and were not actionable.

The complaint alleged that the following statement was allegedly posted on the Facebook page of Loretta Adams: “Fishkill needs to beware of a corrupt place called NTC AUTOBODY and Edward Baecher who would steal whatever isn’t locked down/”

NTC/Beaeher alleged that the statement was libelous per se and/or was false, defamatory, and constituted libel innuendo.

Archer did not deny being the author of this alleged posting, nor does he contest the accuracy of the statement as set forth in the complaint. Instead. Archer argued that the statement was not actionable as it was pure opinion. In support of that argument, Archer asserted that the statement fits squarely within the four corners of a test for pure opinion. Specifically, Archer argued that the use of the word “would” steal, rather than “did” steal, characterized the rest of the statement as pure opinion. Further, Archer argued that what he thought NTC/Baecher “would” do remained Archer’s opinion and was incapable of being proven false, which warranted dismissal of the suit.

In order to state a cause of action to recover damages for defamation, a complaint must allege that the defendant published a false statement, 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. In determining the sufficiency of a defamation pleading, the Court must consider whether the contested statements were reasonably susceptible of a defamatory connotation and, if upon any reasonable view of the stated facts, the plaintiff would be entitled to recovery for defamation, the complaint must be deemed to sufficiently state a cause of action.

Expressions of opinion, as opposed to assertions of fact, are deemed privileged and, no matter how offensive, cannot be the subject of an action for defamation. Distinguishing between fact and opinion is a question of law for the Court, to be decided based on what the average person hearing or reading the communication would take it to mean.

Three factors are applied in determining whether a reasonable reader would consider the statement as fact or nonactionable opinion: (1) whether the specific language used had a precise meaning which was readily understood; (2) whether the statements were capable of being proven true or false; and (3) whether either the full context of the communication in which the statement appeared or the broader social context and surrounding circumstances were such as to signal readers that what was being read was likely to opinion, not fact.

Applying those factors to the statement by Archer, the Court found that NTC/Baecher stated a cause of action sounding in libel sufficient to survive the motion to dismiss. Although Archer argued that the use of the word “would” transformed the statement into pure opinion, the Court disagreed. First, that argument ignored the unqualified language contained in the statement warning the reader to beware of a “corrupt place” called Autobody. That portion of the statement had a meaning that was readily understood and could arguably be proven true or false. Moreover, given that the statement was the only information that was provided in the Facebook post, a reasonable reader could have believed that the challenged statements were conveying facts about NTC/Baecher.

The same analysis was true for the remainder of the statement that “Edward Baecher who would steal whatever isn’t locked down.” Archer asserted that the use of the word “would” rendered the statement one of pure opinion. However, that portion of the statement could not be taken out of context with the first portion of the statement that indicated that NTC was a corrupt place. The use of the word “would” “was insufficient to transform his statements into nonactionable pure opinion, because in context, a reasonable reader could view Archer’s statements as supported by undisclosed facts. As such, at the early stage of the litigation, on a pre-answer motion to dismiss, and on the record, the Court could not find that, as a matter of law, the statements were pure opinion. Archer’s motion on that ground was denied.

NTC/Baecher cross-moved to amend their Complaint to add another instance of alleged libel, based upon the following statements contained in Archer’s affidavit in support of his motion to dismiss the complaint:
(1) Plaintiff EDWARD BAECHER, is an elected official. He is a member of the Town of Fishkill/Dutchess County Republican Committee, as such he is an elected official, and (2) He [Baecher] joined the committee, despite not being a resident for the sole purpose of wielding influence over elected officials, strong-arming them, and steering business to his company NTC COLLISION SERVICE, INC., d/b/a NTC AUTO BODY.

An absolute privilege is accorded statements made at all stages of a judicial proceeding in communications among the parties, witnesses, counsel, and the Court provided that the statements could be considered in some way `pertinent’ to the issue in the proceeding. The test of whether the statements were pertinent to the litigation is extremely liberal and embraces anything that may possibly or plausibly be relevant or pertinent. The privilege applies to all statements made in or out of Court and regardless of the motive for which they were made.

It was uncontested that the identified statements were made in the context of a judicial proceeding. NTC/Baecher argued that the statements “go far beyond the scope and subject matter of this action and should not be subject to the privilege.” However, the test of whether such statements were pertinent or relevant to the litigation was extremely liberal.

Here, Archer’s statements, taken in the full context of his affidavit, were relevant to the issues of the proceeding. Archer’s statements addressed his perception of NTC/Baecher’s motive in bringing the suit against him. Accordingly, those statements were absolutely privileged as a matter of law and could not be the basis for a defamation action. The motion to amend the complaint was denied.