Defamation vs Protected Opinion: Know Your Legal Risks
You’ve no doubt heard the saying, “There is nothing as uncommon as common sense.”
There is a closely related issue in the form of several questions that we should ask ourselves, but often do not at times when common sense should prevail:
- If I do this, what are the likely consequences?
- Why am I even considering doing this?
- Who can I ask before I take the next step?
- Have I been here before, doing something that, when looking back on it later and the trouble it got me into, indicates I’m prone to asking for trouble?
‘I am supposed to get 32 miles per charge’
Ideas for my articles are often handed to me by readers. Fortunately, most are asking for a legal opinion on some action they want to take. Frequently, the underlying basis, as we say in law, “assumes facts not in evidence.”
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This means a question or statement assumes something that hasn’t been proven, but there is an assumption, a belief, that the statement is true, and they are about to act on it.
“Jackie,” who lives in the South, sent this email that is the perfect illustration: “I purchased a new Chrysler Pacifica eHybrid from my local dealer in 2024. I am supposed to get 32 miles per charge. In March, I was only getting 28 to 32 miles per charge. The charge is also not lasting as long as it is supposed to.
“The local dealer, as well as Chrysler customer care, refuse to fix the problem. My car is within the warranty period. I want to put magnetic signs on my car telling people not to purchase vehicles from this dealer. Am I protected under the First Amendment? We live in a small city, and these signs would definitely make an impact.”
Jackie signed her email, “A devoted reader.”
Is Jackie’s complaint valid?
I read online reviews of her vehicle, all confirming the EPA estimates 32 miles of electric-only range on a full charge. Industrywide, EV batteries normally lose about 2% range per year.
In any event, a 28- to 32-mile electric range is within normal variation for a 2024 Pacifica PHEV. Jackie’s complaint about the dealer and Chrysler therefore lacks merit, as there is nothing to repair.
Legal issue: Defamation vs protected opinion
When it comes to criticizing a business, it is important to understand the difference between speech that is protected and speech that is unprotected — statements of opinion vs factual assertions.
So, Jackie could attach a sign to her car that states her opinions, such as:
- I believe the dealer misled me, and I would not buy from them again
- I do not like the mileage I am getting
- In my opinion, Chrysler isn’t honoring its warranty
However, the following assertions could see her staring down the barrel of a defamation lawsuit if she’s unable to support them with facts:
- Chrysler lied about the battery range
- My dealer knowingly sold me a defective vehicle and refused needed repairs
- My dealer is engaging in consumer fraud
The legal risks Jackie could be inviting
Jackie could be:
- Sued for business interference. If her local Chrysler dealer has proof that the signs she put on her car are costing them sales or other economic damage, they would likely file suit alleging intentional interference with prospective economic advantage and trade libel.
- Sued for defamation. Over the years, I have had more than one unhappy car owner march into my office, shaking like a leaf, holding a lawsuit they were just served with from an auto dealer that accuses them of posting defamatory signs, reviews and social media comments containing false factual assertions — meaning they stated a specific fact that can be proven false.
To a person, they thought that by causing embarrassment to the dealer, this would result in their complaint being dealt with. The result was anything but. None of them ever saw the possible legal consequences of engaging in what amounted to defamatory conduct.
They never remotely considered having to shell out a significant amount of money for attorney fees.
So, Jackie may put magnetic signs on her vehicle if they contain only her opinions, but she would almost certainly find herself in scalding-hot legal water if the signs contain false factual accusations about the dealer or manufacturer.
I am worried about Jackie
I do not know Jackie, but I wonder if this is a pattern with her. Is she reacting to a perceived wrong in a disproportionate way, revealing a grievance mindset? Is she psychologically invested in the idea that she has been wronged and someone must be held accountable?
That could explain why someone would consider putting a sign on her car even though doing so might lead to significant (and expensive) consequences.
Jackie lives in a small town and will need to have her vehicle serviced, so what does she get out of going to war with the dealer? Absolutely nothing!
There could very well be deeper issues at play, and this could be a time for a family meeting. Today, it is a non-issue with her vehicle, but she faces potential enormously high attorney fees if she defames the auto dealer and automaker.
Dennis Beaver practices law in Bakersfield, Calif., and welcomes comments and questions from readers, which may be faxed to (661) 323-7993, or e-mailed to Lagombeaver1@gmail.com. And be sure to visit dennisbeaver.com.
