Defamation is a tort in Washington State. A tort is a civil wrong, other than breach of contract, for which remedies may be obtained. To succeed on a claim of defamation, a plaintiff must typically prove the following four elements:
- false and defamatory language on the part of the defendant;
- an unprivileged communication of the defamatory language by the defendant to a third person;
- fault on the defendant's part; and
THE THRESHOLD QUESTION
However, "before the truth or falsity of an allegedly defamatory statement can be assessed, a plaintiff must prove that the words constituted a statement of fact, not an opinion." Id. The issue of "[w]hether the allegedly defamatory words were intended as a statement of fact or an expression of opinion is a threshold question of law for the court." Id. (internal citations omitted).
THE DUNLAP 3-FACTOR TEST
In order to determine whether words "should ... be viewed as nonactionable opinions, ... [the courts] consider the 'totality of the circumstances' surrounding those statements: 'To determine whether a statement is nonactionable, a court should consider at least (1) the medium and context in which the statement was published, (2) the audience to whom it was published, and (3) whether the statement implies undisclosed facts. Id. at 56 (citing Dunlap v. Wayne, 105 Wash. 2d 529, 539, 716 P.2d 842 (1986) (regarding as a nonactionable opinion, not a statement of fact, opposing counsel's statement to plaintiff's employer that plaintiff had been soliciting a kickback).
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