Defamation, Libel, Slander and Cyber Smear

Reputation is one of the most important factors that determines the success of a business. How customers and the general public see the business can impact its revenue and its growth. False or misleading information about a company or its product can therefore be devastating. Our Chicago defamation lawyers recognize that defamation law provides a means of recovering damages caused by false statements to the public. If you or your business has suffered damages because of defamatory statements, an experienced business and commercial litigation attorney can help you by identifying the offending statement, establishing its falsity, and pursuing the liable parties to obtain compensation for you.

Defamation: Slander and Libel

As a general rule, spoken defamatory statements are called “slander,” and written ones are called “libel.” Modern law has disregarded the distinction between the two and simply refers to all defamatory statements simply as “defamation.” The internet has opened an almost infinite array of places for defamatory speech to occur, leading to phenomena like “cybersmearing” or “cyberbullying.”

Illinois defines defamation as a false statement of fact about the plaintiff “published,” which means shared with another person, that harms the plaintiff’s reputation (i.e. lowers the plaintiff in the eyes of the community).

There are two categories of defamation in Illinois: defamation per se and defamation per quod. Depending on which category of defamation the statement falls into, a plaintiff will have to prove different things. Our defamation attorneys can help Chicago clients in either of these situations.

Defamation Per Se

Some statements, in the view of many states’ defamation laws, are so obviously and materially harmful to the plaintiff that injury to his reputation may be presumed. Such statements are deemed to be defamatory per se. The Illinois Supreme Court considers five types of statements to be defamatory per se: (1) accusing a person of committing a crime, (2) accusing a person of being infected with a “loathsome communicable disease,” (3) accusing a person of lacking ability or integrity in the performance of job duties, (4) statements that otherwise prejudice a person in his profession or business, and (5) accusing a person of adultery or fornication. Solaia Tech., LLC v. Specialty Pub. Co., 221 Ill. 2d 558, 580 (2006). A plaintiff does not need to plead or prove actual damage to his reputation to recover for a statement that is defamatory per se.

Defamation Per Quod

For other defamatory statements, the harm to the plaintiff’s reputation may not be so obvious on the face of the statement or the harm may be obvious but the statement doesn’t fit in any of the five categories of defamation per se. In these instances, the defamatory statements are considered defamatory per quod. In an action for defamation per quod harm to the plaintiff’s reputation is not presumed meaning the plaintiff will have to prove the specific harm to his reputation caused by the defamatory statement. This often consists of measurable losses in sales or other revenues, but it could also include damage to the value of a brand or a firm’s standing in its industry or with the public. Gertz v. Welch, 418 U.S. 323, 339-40 (1974).

Necessity of Proving “Actual Malice”

“Actual malice” is a term of art in defamation law. A defendant makes a statement with “actual malice” when he knows the statement is false or he seriously doubts whether it is true. A plaintiff must prove that the defendant made the statement with “actual malice” if (1) the plaintiff is a government official; (2) the plaintiff is a public figure; or (3) the defendant’s statement concerns an issue of public interest. If none of the categories listed above apply, then the plaintiff must only prove that the defendant was negligent in making the statement. The defamation lawyers at our Chicago firm can assist clients in determining whether one of these categories applies to their case.

The First Amendment’s Role in Defamation

The First Amendment protects virtually all speech. Over the course of the past two centuries the Supreme Court has identified only a few types of speech not protected by the First Amendment. One type of speech not protected is false statements of fact. A statement of fact is one that is readily understood, is objectively verifiable, and, when considered in context, signals that it has factual content. Solaia, 221 Ill. 2d at 581. Conversely, the First Amendment protects expressions of pure opinion. However, a defendant cannot avoid liability by prefacing a statement of fact with the words “in my opinion.” A court will have to decide if a statement is a statement of fact or a statement of pure opinion.

Common Defenses to Defamation

Truth is an absolute defense to defamation. A statement that is true—no matter how damaging to the plaintiff’s reputation—cannot be defamatory. This gives the defendant an incentive to prove the truth of the allegedly defamatory statement to both the court and the court of public opinion. While this should never dissuade a plaintiff from pursuing a meritorious claim, added public scrutiny is a factor to consider.

Closely related to the defense of truth is the “substantial truth” doctrine. Under the “substantial truth” doctrine, a statement is considered true (and thus protected from liability for defamation) if the “gist” or “sting” of the statement is true even if the statement is not completely accurate. If the “gist” of the statement is true, the court will disregard small errors in detail.

Many states have enacted statutes to protect individuals from allegedly frivolous defamation suits, known as “strategic lawsuits against public participation” (SLAPPs). Anti-SLAPP statutes provide mechanisms for a defendant to challenge the merits of a defamation case early in the litigation process. If a court rules that a case lacks merit, it could result in dismissal and, in some cases, sanctions against a plaintiff. These statutes could also be used to delay non-SLAPP defamation suits, so careful preparation of a claim is critical.

Defamation law is complex and highly nuanced. The success of a plaintiff’s defamation claim can often depend on how the case is presented and litigated. Having your case handled by a knowledgeable and skilled defamation attorney is highly recommended.

Lubin Austermuehle, P.C.’s Chicago defamation attorneys have offices in Elmhurst and Chicago, Illinois. We represent clients throughout Illinois, including Chicago and surrounding areas, DuPage County, as well as Indiana and Wisconsin. To schedule a consultation with a member of our team, contact us via email, at 630-333-0333.

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