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

Today’s Second Circuit opinion is in Polis v. Valley Electronics AGReena Raggi and Judge Jose Cabranes ruled in favor of the petition.

Valley Electronics AG [and related companies] … allege[]Polis is a reproductive epidemiologist and made defamatory comments about Valley’s marketing campaign for Daysy. Daysy was designed to identify the “fertile and infertile stages of the menstrual cycles” by basing body temperature. Polis made the allegedly offensive statements on her blog, as well as in BuzzFeed articles that quoted her and comments to other Instagram posts.

These statements fall generally into one of two categories. Polis is accused of presenting false information about the scientific support for Daysy’s efficacy in her Science Statements and disparaging Daysy’s advertising based upon those studies. {Look! Compl. ¶¶ 18 (Daysy is marketed “without solid evidence”), 19 (“Daysy misrepresented their evidence-base”; Valley provides “[n]Daysy’s effectiveness is not “reliable,” 21[N]o scientific publications demonstrat[e]How accurate Daysy is [tells users when they are fertile]”), 23 (promoting Daysy “put[s] people in harms [sic] way”).}

Polis, in her Ethics Statements, allegedly incorrectly questioned Valley’s integrity. {Look! 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”).} …

The context suggests that Polis was expressing opinions [and thus not actionable libel].

Polis’s statement was included in every publication that he published. Each of these publications referred or quoted Polis’s criticism of Daysy’s study. The publisher later retracted the study. Polis also critiqued Valley’s behavior, as well as other critiques by Polis. 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.” {The disclosure of this information and inclusion hyperlinks to additional sources provides “the base for.” [Polis’s]Personal opinion. It is up to readers to decide [her claims]For themselves.” So far, we have not identified any factual claims that would suggest Polis knew of unrevealed 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”).}

Polis published an article in the blog section on her personal website. Polis posted comments to his Instagram account using the “medium” keyword.[a]That [are] typically regarded by the public as … vehicle[s]Polis’s blog allows for individual opinions to be expressed rather than the detailed and thorough presentation of facts. Polis has an impressive website that boasts her scientific qualifications and takes on a professional appearance. However, her writing style is casual and her readers should be aware that she shares her views. The statement at the top that Polis “hopes that to transform her anger at scientific denialism and social injustice into something constructive” is a warning.

Polis did not quote from BuzzFeed. However, she said that her quotes were “qualified”.[i]It does not seem” that Valley cares about providing accurate information to its customers. The view that Valley was lacking solid evidence was attributed to “Polis, 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]”I was only speaking a highly political point of view.”

This context leads us to conclude that Polis’s statements constitute non-actionable opinions. This conclusion is reinforced because the vast majority Polis’s statements don’t have a precise meaning. The Ethics Statements, in particular, “are hyperbole” and are therefore not actionable opinions.

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