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It is a thing that youtubers get sued for calling out scams. One "solution" is to sarcastically say something non-defamatory while making it clear you mean the opposite. I am fairly sure this is done here for comedic rather than legal effect but it shows what I mean:

So look, I am not saying that this is a scam. For legal reasons I would never even hint at the possibility that a product might be a scam. Indeed, I want to make it really clear that I have definitely not said it’s a scam. But what do you think? Is it a scam? Let me know in the comments.

Assuming the intended meaning is not in doubt, could saying this be found to be non-defamatory where saying "This is a scam" would be defamatory?

User65535
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5 Answers5

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Assuming the intended meaning is not in doubt, could saying this be found to be non-defamatory where saying "This is a scam" would be defamatory?

If the statement seems to be implying that something is a scam, e.g. by sarcastically saying "this is definitely NOT a scam," it might be found defamatory. Defamation is not solely about the literal meaning of the statement, it's about whether a statement has a 'defamatory tendency'.

As the court said in McAlpine v Bercow:

  1. As a matter of law, words are defamatory of a claimant if (1) they refer to that claimant and (2) they substantially affect in an adverse manner the attitude of other people towards the claimant, or have a tendency so to do.

A statement may be defamatory in its 'natural and ordinary' meaning or by 'innuendo'. In Jones v Skelton the court explained that:

The ordinary and natural meaning of words may be either the literal meaning or it may be an implied or inferred or an indirect meaning: any meaning that does not require the support of extrinsic facts passing beyond general knowledge but is a meaning which is capable of being detected in the language used can be a part of the ordinary and natural meaning of words. …. The ordinary and natural meaning may therefore include any implication or inference which a reasonable reader guided not by any special but only by general knowledge and not fettered by any strict legal rules of construction would draw from the words.

An innuendo meaning is one that can be implied from the statement only if the reader/listener also knows 'extrinsic facts' that are not general knowledge.

In respect of "safe" I would add that even if an accusation of defamation is dismissed or doesn't reach court at all, it can nevertheless cost the accused a lot of money, stress and time.

Lag
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You stipulate that "the intended meaning is not in doubt" and that they "mak[e] it clear" they "mean the opposite." What matters is the meaning that the ordinary person would infer from the words. That meaning is what will be assessed for defamation.

The impugned statement may convey more than its literal meaning

Courts recognize that meaning is contextual. It is not enough for a defendant to argue that a defamatory statement is literally true, if the defamatory sting of the comment stems from non-literal meaning.

In Canada, (see Weaver v. Corcoran, 2017 BCCA 160, at para. 71):

Words may convey a defamatory meaning literally, inferentially or by legal innuendo. Literal meaning is conveyed directly; inferential meaning, indirectly; and legal innuendo, by extension based on extrinsic facts. ...

Where the literal meaning of words is in issue, it is unnecessary to go beyond the words themselves to prove that they are defamatory. Where a claim is based on the inferential meaning of words, the question is one of impression: what would the ordinary person infer from the words in the context in which they were used? Both literal and inferential defamatory meaning reside within the words, as part of their natural and ordinary meaning. In contrast, where legal innuendo is pleaded the impugned words take on defamatory meaning from outside circumstances beyond general knowledge, but known to the recipient.

Terminology

As an aside, to address an issue arising in the comments to the question: whether a statement is defamatory is separate from whether it is true or false. In Canada, for example, a statement is defamatory as long as it "would tend to lower the plaintiff’s reputation in the eyes of a reasonable person" (Grant v. Torstar Corp., 2009 SCC 61). And in the United States, courts also separate the two concepts. See for example, Pegasus v. Reno Newspapers, Inc., 118 Nev. 706 (Nev. 2003)

The general elements of a defamation claim require a plaintiff to prove: "(1) a false and defamatory statement...

Many defamatory statements are not grounds for tort liability in defamation because they are true.

Jen
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Is it safer to sarcastically say "This is not a scam" than honestly say "This is a scam"?

It is safest to not use the word “scam”.

Scam: “a dishonest scheme; a fraud.”

Fraud: “wrongful or criminal deception intended to result in financial or personal gain.”

The problem with either of the options you presented is that the word "scam" is a conclusion of, (or claim made by...) the video producer that implies knowledge of intent. Since criminal intent to deceive cannot be positively determined outside a court of law, just report the facts as they are known and avoid using that word. Let the viewer decide...

Because truth and facts are never defamatory, while claiming that someone has criminal intent may be.

There’s nothing wrong, however, with attempting to lead the viewer into this conclusion - you have that right under freedom of speech and freedom of the press. But in the court of public opinion it would be safest to not make public your own personal verdict.

Michael Hall
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It is possible this would be a factual question for a jury to decide. The jury would see the video itself, and (perhaps) hear testimony from expert witnesses on one or both sides as to how the public tends to interpret statements of this variety, and would then be asked to rule on the meaning a "reasonable viewer" would interpret the video to have. On the other hand, you say that "the intended meaning is not in doubt," which suggests that the defense has already conceded the issue, and so there would be nothing to litigate on this point.

However, that is not the end of the story. There would be several additional steps both before and after that ruling which would need to be considered.

  1. If the lawsuit were originally filed in a jurisdiction other than the United States (and the already-victorious plaintiff is now trying to get a US court to enforce the foreign judgment by attaching the American assets of the defendant), a US judge would have to rule on whether that jurisdiction provides similar free speech protections to those of the US as provided in 28 USC 4102, and if not, whether the plaintiff would have won anyway in a US court. In practice, the latter half of this test is equivalent to holding a whole new trial in the US, and the former half is unlikely to be satisfied by any jurisdiction because the actual malice standard is more or less unique to the US.
    • For lawsuits originally filed in the US, this step is skipped.
  2. A YouTuber is a "user of an interactive computer service" within the meaning of 47 USC 230(c)(1), so the YouTuber could argue that the information was "provided by another information content provider." This might become relevant if the YouTuber was merely relaying information that they had obtained from some third party. In practice, this provision has more often been used to protect platforms such as YouTube and not individuals, but the law very explicitly does protect users as well as platforms, so it's not a completely impossible defense. Still, this is not raised frequently, and I'm not sure it's a very useful defense in practice.
    • Note that this liability shield is incorporated by reference into 28 USC 4102, so it provides yet another off-ramp to recognition of a foreign libel judgment.
  3. The plaintiff would need to demonstrate the falsity of the YouTuber's claim. It is not sufficient to merely demonstrate that the scheme was not literally a crime - US courts have recognized the doctrine of "substantial truth," where the court will consider the "gist or sting" of the defendant's statement rather than its literal meaning. If the plaintiff was offering a product under false or misleading marketing or branding, it is likely that a US court would rule that the term "scam" was substantially true even if no literal crime had been committed, because an ordinary consumer would understand "scam" to encompass a broader sense of "a good or service that is worthless or does not function as advertised" and not the hyper-literal meaning of "a fraudulent scheme that violates one or more laws."
    • Of course, there are limits. The more specific and objective the YouTube video is, the less plausible this defense becomes. Saying "I tried the ACME Corporation's widgets, and they didn't work. They're a total scam!" is a very different thing from saying "The ACME Corporation is operating a massive scam in the widget market. They are defrauding customers by selling a product that doesn't work, can't work, and in fact is physically impossible." The latter is not going to be defensible if it turns out that the widgets do work but have a high defect rate, whereas the former is more of a gray area, and might be taken to be opinion based on disclosed facts - since an opinion cannot be true or false, that would be a victory for the defendant.
    • Substantial truth is also evaluated in the context where the statement appears. A five minute YouTube video that is filled with memes, jokes, and other nonsense is likely to be viewed more favorably than a two hour YouTube video with a serious tone throughout, because a reasonable audience understands that the former is prone to hyperbole and exaggeration, and may even be a work of satire, whereas the latter is more likely to be taken seriously. But if you start the video by telling the audience that they should take you seriously despite the memes and other nonsense, then that would tend to cut against this defense. There's no free lunch - if you present something that audiences will take seriously, then you assume a greater risk of getting sued if you get your facts wrong.
  4. The plaintiff would probably be (at least) a limited purpose public figure, since they are offering products for sale to the general public and (presumably) advertising those products. Therefore, they would need to demonstrate "actual malice" - meaning the defendant either knew the statement was false, or was reckless as to its truth or falsity. In practice, "recklessness" usually involves disregarding evidence against the statement. Mere carelessness is not enough.
Kevin
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Assuming the intended meaning is not in doubt, could saying this be found to be non-defamatory where saying "This is a scam" would be defamatory?

If the intended meaning matches the meaning a reasonable reader or listener would understand in context, then the exact words you chose do not matter. The test of whether a statement is defamatory or not is done on what the statement means.

For the same reason, you cannot generally put "it is my opinion that" before a defamatory statement to make it non-defamatory even if it is in fact your opinion. Unless a reasonable person listening to the statement in context would understand that prefix to change your claim from a factual claim to some other claim, it has no effect on whether the statement is actionable defamation or not.

If a reasonable person hearing the statement in context would understand, "This is definitely not a scam. I certainly would never say this is a scam." to mean that the speaker is saying that it is in fact a scam, then the legal effect is precisely the same as if you said any other words that would convey the same impression such as, "this is a scam".

There is no magic words test for defamation. All that matters it the meaning the speaker intended to convey and the meaning that a reasonable listener hearing the statement in context would likely understand to be conveyed.

The point of defamation law is protect against people being able to create false beliefs about other people that harm their reputations. If you could create such beliefs and cause that harm while using artful word selection to avoid liability, defamation law would just be a minor challenge rather than a real protection from harm society has deemed to be justifiably punished.

David Schwartz
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