Repairing the damage from defamation: not every statement qualifies as one of “fact”

In heated situations, when tempers are lost, in situations where feelings are hurt and people make statements impugning the character of others, it’s not uncommon we get questions on when someone can be sued for defamation. But not every possible statement is one that a person can sue over. Defamation concerns statements of “fact”, not statements of “opinion.”

What then is the difference? Statements that are relative in nature and depend largely upon the speaker’s viewpoint are opinion, as opposed to ones with a provably false factual connotation. If the words cannot be described as either true or false, they are not actionable. Additionally, a court will not isolate parts of an alleged defamatory statement. It must be considered as a whole to determine whether it states a fact or non-actionable opinion.

One federal opinion Virginia courts frequently turn to, Potomac Valve & Fitting, Inc. v. Crawford Fitting Co., 829 F.2d 1280, 1288 (4th Cir. 1987), provides a number of factors that can help distinguish a statement of fact from opinion:

1.       What were the speaker’s choice of words?

2.       Is that statement capable of being objectively characterized as true or false?

3.       What was the context of the statement relative to other things the speaker was saying?

4.       What was the “social context” of the statement?

Other guidance from that opinion include question like, would the statement be one most people would “take with a grain of salt”? Is the statement one of taste or fashion? Is the language one with terms that are “loosely defined”? Is the statement one backed up with what appears to be careful research?

Here’s an example: if you were at a backyard family gathering and a distant cousin who had been drinking, and with whom you had never professionally interacted, said you were incompetent at your job, would that be enough? Absent more context, not likely. But what about a staff meeting at your job where people in your line of work are on a conference call with other people in the industry? And what if they mentioned a time they asserted you had messed up? That would be far closer to the kind of “statement of fact” defamation is meant to address.

These situations are not limited to work either. Someone asserting you abused your children or beat your spouse are provably false accusations.

But, as should be clear, these situations are extremely fact dependent, and knowing when something is actionable is something only an attorney can help you determine ahead of filing suit. If you or someone you know has been the victim of people making unfounded accusations, call the attorneys at Winslow & McCurry at 804-423-1382 or email us at We have years of experience helping clients know when to pursue a defamation claim to help them recover their hard-fought reputation in the community.​