Chalk up a victory for pro-consumer speech in Illinois. In a recent opinion, the Third District Appellate Court found that Better Business Bureau of Central Illinois (BBB) did not defame a business by giving it a “D-” reliability report on its website because the rating was protected as subjective opinion.
Perfect Choice Exteriors LLC, a home improvement company in Creve Coeur that installs windows, roofing, and siding, sued BBB in Peoria County circuit court for defamation, commercial disparagement, tortious interference with contract, and violation of the Uniform Deceptive Trade Practices Act. Perfect Choice claimed BBB told inquiring customers that they should not do business with the company, resulting in a loss of contracts exceeding $50,000, as well as “injury to [its] reputation and standing within the business community in an amount exceeding $50,000.”
BBB initially gave Perfect Choice an “A” rating after it launched in 2009, but later changed that to a D- based on what it called the “complaint volume with the BBB for a business of [Perfect Choice’s] size” and Perfect Choice’s inadequate response to and resolution of customer complaints. Perfect Choice denied these claims and alleged that BBB never materially investigated the complaints to determine their validity.
Further, Perfect Choice claimed, BBB rated companies that were paid members of BBB more favorably than companies that were not, such as Perfect Choice, and cited an example of a member company that had more complaints within the preceding 12 months but still received an “A” rating.
BBB argued that its website explains that its letter grades “represent the BBB’s opinion of the business,” which is based on the number of complaints filed against the business with the BBB, the seriousness of such complaints, whether the business has a history of resolving such complaints satisfactorily in a timely manner, and other factors.
BBB sought and won dismissal on the grounds that the statements were protected opinion under the First Amendment and were qualified privilege under Illinois law. The trial court cited the U.S. Supreme Court’s decision in Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990). The court also held that BBB’s ratings “enjoy[ed] a qualified privilege” as recognized by the Illinois Supreme Court in Kuwik v. Starmark Star Marketing & Administration, Inc., 156 Ill. 2d 16 (1993), because they are made in “situations in which a recognized interest of the public is concerned,” and Perfect Choice had failed to show a bad-faith exception.
According to the Third District, under Illinois precedent, the issue turned on whether the allegedly defamatory statement could be reasonably interpreted as stating an actual fact (Solaia Technology, LLC v. Specialty Publishing Co., 221 Ill. 2d 558 (2006)). Under Milkovich and Solaia, the court noted, 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.”
The court acknowledged that the state supreme court “has yet to determine whether these constitutional protections also apply where, as here, a private party has allegedly defamed another private party on a matter of public or private concern,” as opposed to cases involving a public figure or a media defendant. However, the court noted that in Imperial Apparel, Ltd. v. Cosmo’s Designer Direct, Inc., 227 Ill. 2d 381 (2008), the high court seemed to express support for extending the constitutional protection to private defendants.
“Illinois courts have held a statement of opinion to constitute actionable defamation only where the speaker states or clearly implies a verifiable factual basis for the opinion or the opinion is otherwise capable of being objectively verified,” the Third District majority wrote, concluding that BBB’s statements were “vague, generalized statements of opinion that do not state or imply any specific assertions of fact.”
“Perfect Choice does not allege that BBB informed inquiring customers of any factual basis for its alleged opinions. [It] merely alleges that BBB made the bald statement that Perfect Choice was not a ‘good’ company. …[S]uch vague, unsupported expressions of opinion are not actionable.”
Since the statements were non-actionable opinion, the court did not reach the question of whether they were protected by qualified privilege.
Our Arlington Hts., IL libel, and slander lawyers concentrate in this area of the law. We have defended or prosecuted a number of defamation and libel cases including cases representing a high profile athlete against a well known radio shock jock, a consumer sued by a large car dealer in federal court for negative internet reviews and videos, one of Loyola University’s largest contributors when the head basketball coach sued him for libel after he was fired, a lawyer who was falsely accused of committing fraud with the false allegation published to the Dean of the University of Illinois School of Law where the lawyer attended law school and the President of the University of Illinois.
Our Chicago defamation attorneys defend individuals’ First Amendment and free speech rights to post on Facebook, Yelp and other websites information that criticizes businesses and addresses matters of public concern. Our Chicago Cybersquatting attorneys also represent and prosecute claims on behalf of businesses throughout the Chicago area including in Wheaton and Geneva who have been unfairly and falsely criticized by consumers and competitors in defamatory publications in the online and offline media. We have successfully represented businesses who have been the victim of competitors setting up false rating sites and pretend consumer rating sites that are simply forums to falsely bash or business clients. We have also represented and defended consumers First Amendment and free speech rights to criticize businesses who are guilty of consumer fraud and false advertising.
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