As I’ve written about before, there is a thin and often elusive line between what is actionable defamation and what is non-actionable opinion.
An example of a type of statement that often confounds lawyers is one that appears to be a false statement of fact, but is actually an opinion about a future event or outcome. These statements usually arise from predictions about the outcome of legal proceedings, e.g., “I’m certain that defendant will be convicted of burglary.” Predictions related to investments are also non-actionable , e.g., “investors in XYZ, Inc. will see no returns and will lose their entire investments.”
But such statements are not actionable because they constitute an opinion about a future event rather than an opinion that implies a false assertion of fact. These statements constitute predictions as to the occurrence of a future event, which is inherently incapable of being proven true or false at the time they were made. See Cochran v. NYP Holdings, Inc. (C.D. Cal. 1998) 58 F.Supp.2d 1113, 1124 (prediction about lawyer’s strategy held to be non-actionable opinion); see also South Middlesex Opportunity Council, Inc. v. Town of Framingham (D.Mass.2010) 752 F.Supp.2d 85, 120 (“Because Orr’s statement is unambiguously an expression of opinion about a future event, he cannot be held liable for defamation as to this statement.”).
In sum, statements about future events or predictions generally cannot be proven true or false. As a result, they are not actionable and thus cannot for the basis of a valid defamation claim.