The dividing line between opinion and statement of fact is, however, most troublesome. Mr. Odgers, in his excellent work on _Libel and Slander_, remarks that the rule for the distinction between the two should be that “if facts are known to hearers or readers or made known by the writer, and their opinion or criticism refers to these true facts, even if it is a statement in form, it is no less an opinion. But if the statement simply stands alone, it is not defended.” Applying this rule, what if a critic makes this simple statement: “The latest book of Mr. Anonymous is of interest to no intelligent man”? According to the opinion of Mr. Odgers, it would seem that such a sentence standing alone was a statement of fact, whereas it is manifest that no one can think that the critic meant to say more than that in his opinion the book was not interesting. In Merrivale and Wife _vs._ Carson, the jury found that the words used by the critic described the play as adulterous, and the court said that this was a misdescription of the play—a false statement of fact; but an adulterous play may be one which is only suggestive of adultery; and even if the critic had baldly said that the play was adulterous, many of us would think that he was only expressing his opinion.
Since the test of whether the statement is of opinion or of fact lies, not in what the critic secretly intended, but rather in what the hearer or reader understood, the question is for the jury, and, it seems, should be presented to them by the court in the form: “Would a reasonable man under the circumstances have understood this to be a statement of opinion or of fact?”
One other care remains for the critic: he must not falsely impute a bad motive to the individual when commenting upon his work. No less a critic than Ruskin was held to have made this mistake in the instance of his criticism of one of Mr. Whistler’s pictures. This well-known libel case may be found reported in the _Times_ for November 26 and 27, 1878. “The mannerisms and errors of these pictures,” wrote Mr. Ruskin, alluding to the pictures of Mr. Burne-Jones, “whatever may be their extent, are never affected or indolent. The work is natural to the painter, however strange to us, and is wrought with utmost care, however far, to his own or our desire, the result may yet be incomplete. Scarcely as much can be said for any other picture in the modern school; their eccentricities are almost always in some degree forced, and their imperfections gratuitously if not impertinently indulged. For Mr. Whistler’s own sake, no less than for the protection of the purchaser, Sir Coutts Lindsay ought not to have admitted works into the gallery in which the ill-educated conceit of the artist so nearly approached the aspect of wilful imposture. I have seen and heard much of cockney impudence before now, but never expected to hear a coxcomb ask 200 guineas for flinging a pot of paint in the public’s face.”