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Epidemiologist's Criticism of "Daysy" Fertility Tracker are Constitutionally Protected


From today's Second Circuit opinion in Valley Electronics AG v. Polis, decided by Judges Jose Cabranes, Reena Raggi, and Susan Carney:

Valley Electronics AG [and related companies] … allege[] that Polis, a reproductive health epidemiologist, made defamatory statements regarding the marketing of Valley's product Daysy, which is designed to "identify the fertile and infertile phases of the menstrual cycle" using basal body temperature. The allegedly defamatory statements appear on Polis's blog on her personal website, in a BuzzFeed article quoting her, and in comments she wrote in response to others' Instagram posts.

The statements generally fall into two categories. In her "Science Statements," Polis allegedly misrepresented the soundness of the studies supporting Daysy's efficacy and disparaged Daysy's advertising in reliance on those studies. {See Compl. ¶¶ 18 (Daysy is marketed "without solid evidence"), 19 ("Daysy misrepresented their evidence-base"; Valley provides "[n]o reliable estimate" of Daysy's efficacy; and a retracted favorable study is "junk science"), 21 ("[N]o scientific publications demonstrat[e] how accurately Daysy [tells users when they are fertile]"), 23 (promoting Daysy "put[s] people in harms [sic] way").}

In her "Ethics Statements," Polis allegedly inaccurately impugned Valley's integrity. {See Compl. ¶¶ 18 (Valley is not "interested in providing accurate information to its potential consumer base"), 19 (Valley "made many other outrageous claims[;] … far too many to list"; "has no shame or integrity"; and "recklessly rejected" the retraction of a study), 21 (Valley is "particularly unethical").} …

Context suggests that Polis's statements were opinions [and thus not actionable libel].

Each publication in which Polis's statements appeared recited or referred to Polis's critique of a favorable-to-Daysy study and the publisher's subsequent retraction of that study, among additional critiques of Valley authored by Polis and others. Disclosing Polis's longstanding and ongoing role in criticizing Daysy "would induce the average reader … to look upon the communication as an expression of opinion rather than a statement of fact." {This disclosure and the inclusion of hyperlinks to other sources also provide "the basis for [Polis's] personal opinion, leaving it to the readers to evaluate [her claims] for themselves." We thus identify no factual allegations admitting a plausible inference that Polis's opinions implied knowledge of undisclosed facts. Cf. Gross v. N.Y. Times Co. (N.Y. 1993) (noting as actionable "a statement of opinion that implies a basis in facts which are not disclosed to the reader or listener").}

Further, the article published on the blog section of Polis's personal website and Polis's Instagram comments used "medi[a] that [are] typically regarded by the public as … vehicle[s] for the expression of individual opinion rather than the rigorous and comprehensive presentation of factual matter." Although Polis's website touts her scientific credentials and has a professional look, the writing on her blog is informal, and readers are put on alert that she is sharing her opinions by the statement at the top of the webpage that she "hopes to transmute her rage at social injustice and scientific denialism into something useful."

And Polis's quotes in the BuzzFeed article were qualified; she stated that "[i]t does not appear" that Valley is interested in providing its consumers accurate information, and the view that Valley lacked solid evidence was cast as belonging to "Polis and other critics." In light of these qualifications and the disclosure of Polis's prior advocacy, "it would be plain to the reasonable reader … that [Polis] was voicing no more than a highly partisan point of view."

In light of this context, we conclude as a matter of law that Polis's statements are nonactionable opinions. This conclusion is reinforced by the fact that the vast majority of Polis's statements carry no precise meaning as used. In context, the Ethics Statements in particular "are hyperbole and therefore not actionable opinion."

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  1. The plaintiff should be made to show damage, and then sue the people who caused it. For example, did sales drop? Did the notoriety increase sales? In that case, the plaintiffs owe the defendants publicity payments. This area is ridiculous in its irrationality.

    1. DavidBehar accusing *others* of irrationality? Ha!

    2. "The plaintiff should be made to show damage, and then sue the people who caused it. "

      Had you consulted with your lawyer (egads!) he or she would have told you that proving damages is part of filing a lawsuit for defamation. Not being able to prove damages is one of the way to lose such a suit.

      (In other words, the lawyers already thought of this.)

  2. So basically a redux of EXPAREL, except in the 2nd instead of 3rd Circuit.

    Even though the manufacturers keep losing these cases, I suspect they're still producing the desired results. That is, the in terrorem effect of giving people second thoughts about pointing out a product's flaws, lest they be faced with a hefty price tag for defending against defamation claims, no matter how meritless.

    1. We need a national anti-slapp law.

      1. However, we need to ensure that these are used to defend Davids against Goliaths instead of the other way around. See the Biden laptop case, where one of the largest companies in the world (Twitter) used SLAPP against an independent laptop repairman after they called him a criminal, which should be libel per-se but the suit was thrown out through absurd contrafactual claims that he wasn't identifiable.

        Given how near-impossible it is to win a defamation case against a major publisher, no matter how brazen the falsehoods stated, this has the same effect on the victims of libel, as they not only have no recourse in the courts, but will be heavily punished for even seeking justice..

        1. He filed a frivolous suit accusing Twitter of saying something it did not say, and pleaded the wrong cause of action. Why exactly should he be immune from paying damages for that?

          1. " Why exactly should he be immune from paying damages for that?"

            Because the closest thing to a legal advisor he had was Rudy?

            1. He did technically have a lawyer file the case for him.

  3. While these ststements may well be personal opinion and/or scientific criticism, I find it highly implausible that anything posted on a “personal website” or Instagram is as a matter of law regarded as mere opinion.

    If posted on the internet makes it opinion, we may as well not have libel laws. We are getting to the point where any libel defendant can simply claim nobody takes anything anybody says seriously any more, so nothing can be defamatory.

    1. A conclusion is a matter of opinion, even if it's based on facts. A review blog is a place where you find opinions.

      Placing the article in a news section, in the other hand, would balance it towards being factual information.

      1. Opinions are difficult to disprove. If someone says "I think X", how do you prove that they actually think not-X? One of the elements of defamation is saying something that isn't true.

        1. I know you think you're being clever, but that's not how it works. The relevant legal issue is whether X is true (not whether "I think X" is true), and whether it's an opinion based on disclosed facts or whether it implies the existence of other facts.

          1. You're oversimplifying. But you knew that. Plaintiff has a number of elements to prove, and falsity of the statement is only one of them.

  4. It's clear that Valley Electronics is in favor of defunding the Polis.

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