Defamation

Under Illinois law, you may have a claim for defamation if you can prove that someone made a false statement about you. If you win, you may be entitled to economic and punitive damages. The law of defamation, however, is complicated and there are numerous defenses to defamation claims. We cannot do justice to the complexity of defamation law in a webpage. Should you feel that you have a claim, please contact us for a consultation.

In Hardiman v. Aslam, 2019 IL App (1st) 173196, the court stated: “[t]o prove defamation, a plaintiff must show that the defendant made a false statement about the plaintiff, there was an unprivileged publication to a third party by the defendant, and the statement damaged the plaintiff.” ¶4. There are two types of defamation claims, per se and per quod. The more important category is per se. “Statements are defamatory per se if’ the statements that form the basis of the action…falsely charge the plaintiff with misconduct or incapacity in words so obviously and naturally harmful that they are actionable without proof of special damages.” Id. at ¶4. “Illinois recognizes five categories of statements that are defamatory per se: (1) words that impute that a person had committed a crime; (2) words that impute that a person is infected with a loathsome communicable disease; (3) words that impute a person is unable to perform or lacks integrity in performing her or his employment duties; (4) words that impute a person lacks ability or otherwise prejudices that person in her or his profession; and (5) words that impute a person had engaged in adultery or fornication.” Id. See also Green v. Rogers, 234 Ill. 2d 478, 491-92 (2009). Where the defamation meets one of the per se categories the plaintiff is not required to show actual damages.

Under the per quod line of cases the plaintiff must prove special damages, real economic damages resulting from the false statement.

There are numerous defenses to a defamation claim. The first and best defense is that the statements made were true or substantially true.

In the Hardiman case, the plaintiff alleged that the defendants falsely stated that he “pleaded guilty to and was convicted of domestic violence.” Id at ¶21. The plaintiff argued that he only was convicted of battery, not domestic violence. The Illinois courts found that the “’gist or sting’ of defendants’ statements that plaintiff ‘was once accused of beating his wife’ and had a ‘conviction for misdemeanor domestic violence’ are substantially true.” Id. at ¶22. The Appellate Court then analyzed the domestic violence statute and concluded that battery against a spouse “fits within the legal definition of domestic battery.”

Hardiman also claimed that the statement that he was a former gang member was defamatory per se. The Appellate Court disagreed. It held that the former gang member statement did not fit within the categories of statements that are defamatory per se and the plaintiff was not able to establish any special damages (economic damages) under the defamation per quod category.

There is an additional defense if the plaintiff is a public figure. The plaintiff must show actual malice. Jacobsen v. CBS Broadcasting, Inc. 2014 IL App (1st) 132480 ¶36. Here, the plaintiff, Hardiman, could not show that any actual malice. The court noted that Mike Flannery, a veteran Chicago reporter, interviewed Elizabeth Kane (also a defendant) on the air. Kane stated that Hardiman was a former gang member and provided a basis for her claim. Id at ¶31. According to the court, “plaintiff offered no contrary testimony or counter-affidavits to put this testimony at issue.” Id. Therefore, the trial court correctly granted summary judgment in favor of the media defendants.

Another defense that can be useful to a defendant is that the alleged defamatory statement was protected as an opinion under the First Amendment to the United States Constitution. In Perfect Choice Exteriors, LLC v. Better Business Bureau of Central Illinois, Inc., 99 N.E. 3d 541 (2018), 2018 IL App 3d 150864, the plaintiff was a home improvement company that sued BBB for defamation and other torts after BBB gave it a D- rating on its website. The court noted that “a statement may enjoy constitutional protection under the first amendment if it is the expression of an opinion that does not state or imply an assertion of fact which is provably false.” Id. at 23. The court held that the D- rating was a protected statement of opinion because the letter grade did not imply any particular objectively verifiable factual statement about Perfect Choice’s performance. As the court noted “BBB made clear that its rating was a subjective evaluation based on the application of subjective criteria and a subjective interpretation of the facts.” Id. at ¶18. Statements of opinion are only actionable where the opinion includes a verifiable statement of fact, such as a statement that a doctor severed a patient’s artery in an operation. Id. at ¶31. Even statements that the company “was not a good company” were found to be protected statements of opinion because the statement did not contain a verifiable factual assertion.

There is also an additional risk in suing for defamation – the defendant will be able to obtain discovery and seek information from you. The information sought may be embarrassing or compromising. Thus, many victims of defamation will decline to sue because they are concerned that the discovery process will reveal embarrassing information about them.

Finally, even if the statement that was made was not technically true, it may be wise to refrain from filing a lawsuit. In Hardiman, discussed above, the plaintiff was accused of engaging in domestic violence. He claimed that “domestic violence” was defamatory because he was only convicted of battery. All a lawsuit will accomplish in those circumstances is to publicize the fact that Hardiman was convicted of battery.

Should you have a question concerning a defamatory statement, please contact our Chicago Defamation lawyers. We have experience in litigating defamation claims and may be able to assist you with your issue. Similarly, if you are sued for defamation, do not hesitate to contact us at (312) 357-1515.