You cannot Sue Somebody for Criticizing Your Product, Even if Unfair
(Thursday, March 31, 2022)
A company that manufactures thermometers that predicts fertility status of women sued a vigorous critic of their product for defamation, and the courts dismissed the lawsuit citing protection of the expression of opinion affirming well-established dogma that people can opine freely about a product, negatively. Valley Electronics, the makers of Daysy, the thermometer that calculates if a women is fertile or not based on oral temperature was vigorously panned by Chelsea Polis who published scientific critique of the data supporting Daysy and wrote blogs with strongly critical statements about Daysy. The company’s representatives tried to counter Polis’ writings but fell short of the scientific standard. The company instead decided to silent Polis by suing her for defamation by misrepresentation. However, the courts opined that the opinions expressed by Polis were nonactionable opinions. The company appealed and lost the appeal as well. This is not the first time a company has objected to critics of its products and not the first time sought legal remedy to silent the critics, but courts have repeatedly sided with the critics over the companies. Negative opinions about a product are as important as the positive ones. Trying to silent a negative opinion would be akin to going after a customer who rated a given product, service, or company negatively in a public forum, which would never work. One could imagine that Valley pursued the legal action assuming that Polis would be unable to afford responding to the legal challenge by a large multinational corporation and cave, as it is hard to imagine it hoped to win an argument that goes against the most basic right of any citizen, namely freedom of expression. Scientific arguments can never be won in courts unless there is irrefutable evidence of fraud or other illegal activity. None of that existed in this case. Ironically, Daysy still sells and positive opinion about it drowns the criticism. Perhaps a better course would have been to promote the positive consumer data which is anyway what is helping the product stay in the market despite the strong criticism by one critic.
Dr. Mukesh Kumar
Founder & CEO, FDAMap
Linkedin: Mukesh Kumar, PhD, RAC