Internet Listicles Are Probably Opinion

Has an author deemed it appropriate to include your name in a list of the “Ten Most Dangerous Child Molesters” or the “Top Five Dumbasses of All Time”? According to a recent opinion authored by Judge O’Grady of the Eastern District of Virginia, if you’re claiming defamation based on an Internet “listicle,” chances are you’re going to lose, simply by virtue of the fact that the ubiquitous listicle format is a pretty good sign that what you’re reading is opinion, regardless of the contents of the list.

List-format articles (“listicles”) are everywhere these days. They’re designed to convey ideas in an easy-to-digest format, making them particularly well suited for mobile devices. By their very nature, Judge O’Grady wrote, top-ten lists and other listicles signal to the reader that the content to follow consists of the author’s opinion, rather than provable fact. “These finite lists inherently require authors to exercise opinion and discretion as they choose and rank who or what to include,” the court observed. As such, courts will most likely find statements made therein to be nonactionable opinion, even if they might be construed as statements of fact in other contexts.

In 2012, I wrote about the unsuccessful efforts of the Grant Resort Hotel and Convention Center in Pigeon Forge, Tennessee, to sue TripAdvisor for including it in its list of the Dirtiest Hotels of 2011 (and, in fact, declaring it the winner). In a similar vein, we now have a case brought by a plaintiff who found herself included in an online list of “The 10 Most Corrupt Mexicans of 2013.”

The case is Mirafuentes v. Estevez. The plaintiff, Alejandra Sota Mirafuentes, is the former spokesperson and advisor to former Mexican President Felipe Calderón. On December 16, 2013, the defendant, journalist Dolia Estevez, posted an article to Forbes.com titled “The 10 Most Corrupt Mexicans of 2013” in which the plaintiff was included. The article alleged that the plaintiff was “being investigated by Mexican authorities for alleged embezzlement and trafficking of influence;” that she was “suspected of favoring friends and former classmates with government contracts during the time she served as a top government official;” and that she was

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“attending graduate school at Harvard’s Kennedy School even though she has no college degree.” Ms. Mirafuentes admitted both that she was being investigated by Mexican authorities for corruption and that she attended Harvard’s Kennedy School without receiving a college degree.

First of all, whether calling someone “corrupt” is fact or opinion is a closer call than whether it’s fact or opinion to call a hotel “dirty.” The court seemed to assume without expressly deciding that to accuse someone of corruption would be a statement of fact and not opinion. Interestingly, despite the plaintiff’s inclusion in a list of the “most corrupt Mexicans,” the court found that it did not need to address that question, for a couple of reasons.

First, despite the wording of the headline, the body of the article stated only that “the following is a list of the 10 Mexicans perceived to be among the  most corrupt in 2013.” In other words, the court found, the article did not actually allege that the plaintiff was in fact corrupt. “The meaning of a headline is to be considered in the context of the entire article,” the court wrote, and “when the headline is considered with the accompanying text it is clear that the Article does not assert that Sota is in fact corrupt or that she is one of the most corrupt Mexicans.”

Second, Ms. Estevez appeared to get a pass because the listicle was not merely of ten corrupt Mexicans but of the ten most corrupt Mexicans. Suddenly, what looks like an assertion of fact becomes a mere expression of opinion. In determining whether a statement is fact or opinion, courts generally focus on the verifiability of the statement. How, the court wondered, could anyone objectively determine which Mexicans are the most corrupt? It’s impossible, because the answer depends largely upon the speaker’s viewpoint. Therefore, the statement was treated as nonactionable opinion.

The court also rejected the plaintiff’s claim that the article implied undisclosed factual statements supporting her inclusion in a list of the corrupt, pointing out that Ms. Estevez appeared to fully disclose the basis for including Ms. Mirafuentes in the list. The court dismissed the complaint with prejudice.

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