To be Defamatory, a Statement Must be Offered as a True Fact

defamation tennis player

A news article caught my eye today that beautifully illustrates an important aspect of defamation law. Here are the facts:

According to Sky News and others, an Australian tennis player by the name of Nick Kyrgios was playing in the Wimbledon final. Kyrgios was given a code violation for swearing, after a spectator called out before a second serve. Kyrgios then asked the umpire to eject the woman “who looks like she’s had about 700 drinks.” The woman is now reportedly suing for defamation for that statement, alleging that while it is true she had been drinking, she had not consumed 700 drinks.

Was the statement defamatory? Before I answer, let’s use an extreme example to illustrate the point.

What if I say that you are a no-good, dirty Martian who should return to your planet? Presumably you are not a Martian, so the statement is false, and it implies you committed a criminal act, since Martians are notorious for entering the country illegally.

But no one would seriously argue that you could sue me for defamation, because I could not have possibly been offering the statement as the truth. Alternatively, even if I do believe that Martians come to earth, and was offering it as a true statement, the statement would not be reasonably taken as such by a rational person. The law requires that a statement be reasonably susceptible to a defamatory meaning in order to successfully sue for defamation.

Defamation is about loss of reputation. If I say something about you that clearly was not offered as a statement of fact, or is not believed, how can it harm your reputation? No one would think less of you following my ridiculous Martian remark.

So back to our tennis player.

No human being can consume 700 drinks without dying, so the statement was not being offered as a true fact. It was a hyperbolic statement, made to colorfully state that she had been drinking (which she admitted). If she did indeed distract Kyrgios during his serve, it was not unreasonable to think that alcohol might be a contributing factor.

In that same regard, opinions are generally not defamatory, because opinions are usually not verifiably false. Kyrgios never actually said that the woman had consumed 700 drinks, only that she  “looks like she’s had about 700 drinks.” It was probably not a reasonable opinion, since someone who had 700 drinks would be dead, but he is entitled to his opinion.

And finally, for a statement to be defamatory, it must expose the person to hatred, contempt, ridicule, or obloquy, or cause them to be shunned or avoided. If you tied one on, and someone pointed it out, would that expose you to hatred or contempt? No rational person would hold one in contempt for getting their drink on. If this woman is going to suffer any contempt, it will be because she shouted out during a serve (if she is the one who did so).

Now, I could not tell from the article where this lawsuit is taking place. Defamation law differs from state to state and country to country. Perhaps in the country where this is being pursued, there is no requirement that the statement be false. I recently saw a video from England, where the police were arresting a man for offensive tweets. Whether or not the statements were true did not even enter into the equation. Apparently you can now be arrested in England if anyone finds your comments offensive. But here in California, the spectator’s action for defamation would fail since Kyrgios’ statement about 700 drinks was clearly not being offered as an actual fact.

[UPDATE 11/15/2022:] I guess we’ll never know if my prediction was right, because the case settled. According to the website Eurosport, Kyrgios settled the case by apologizing to the woman, and agreeing to pay £20,000 to her charity of choice.

I’ll note, however, that the full quote was longer than what was identified in the Sky News article. According to Eurosport, here is what Kyrgios yelled at the umpire:

“There is no bigger occasion, you didn’t believe me and she did it again, and it nearly cost me the game. Why is she still here? She is drunk out of her mind in the first row speaking in the middle of the game! What is acceptable?”
After being told “nothing is acceptable,” he fired back: “Okay then kick her out. I know exactly who it is. It’s the one in the dress, it looks like she has had about 700 drinks, bro. Talking to me in the middle of the point and you just go [shrugs shoulders].”
That’s a different kettle of fish. If she interrupted play while “drunk out of her mind,” that absolutely could expose her to “hatred, contempt, ridicule, or obloquy,” and therefore could be defamatory.** Whereas the phrase, “looks like she has had about 700 drinks” could not reasonably be taken as true, “drunk out of her mind” could be.

** Obloquy

1. verbal abuse of a person or thing; censure or vituperation, especially when widespread or general
2. ill repute, disgrace, or infamy resulting from this

Assignment: Try to work “obloquy” into a conversation this week.

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Aaron Morris
Morris & Stone, LLP
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