Articles Posted in Defamation, Libel and Slander

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The Illinois Appellate Court overturned a trial court’s decision that allowed for Farmers Insurance to get out of its contractual obligation to pay for our client’s successful defense of a meritless libel suit. When a business or homeowner is sued for libel, they may not realize it but their CGL business insurance policy or homeowners insurance policy often plainly provides for coverage of libel, defamation and slander suits. Most insurance carriers stand behind their insureds and honor the obligation to pay for the defense, even when the allegations are ugly.  That is what happened for Bill Cosby who used his homeowners’ insurance policy to defend against libel suits brought by women when he denied drugging and raping them. If a carrier is willing to defend Cosby it should defend its insureds when they are wrongfully sued for libel simply for exercising their First Amendment free speech rights by posting a negative review on Yelp or stating a strongly held position at work that they don’t like how their supervisor treats them. After all the insurance we pay for insurance policies to protect us even when we make a mistake.

Farmers spends millions of dollars on television advertising claiming that it will stand behind its insureds when they make every conceivable mistake; it never advertises that it will attack its own insureds, place all the blame on them and refuse to honor the express provisions of its form home owners insurance policy which contains a standard provision to defend homeowners sued for libel.

Given Farmers’ advertisements, our client never imagined that Farmers would betray and attack him as opposed to paying for his defense of meritless libel suit.

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Late last month, the family of Nicholas Sandmann filed a defamation lawsuit against The Washington Post seeking $250 million in damages (roughly the amount Jeff Bezos paid to purchase the newspaper in 2013). Sandmann is the Covington Catholic High School teenager whose standoff with Native American activist Nathan Phillips went viral earlier this year. According to the lawsuit, the Post allegedly defamed Sandmann by initially describing Sandmann as the instigator of the confrontation with Phillips and for portraying Sandmann as “engaged in acts of racism by ‘swarming’ Phillips, ‘blocking’ his exit away from the students, and otherwise engaging in racist misconduct.”

Sandmann was one of a number of students from Covington Catholic High School who were wearing red “Make America Great Again” hats during a trip to the National Mall when they encountered Phillips. A media firestorm surrounding Sandmann kicked off following an online video depicting an apparent standoff between Sandmann and Phillips near the Lincoln Memorial. Comments online and on Twitter following the release of the video were quick to brand Sandmann and to a lesser extent the other Covington students shown in the video, as MAGA bigots. News accounts, including in The Washington Post, of the confrontation, sparked a media firestorm and national debate over the behavior of the participants.

Additional video footage, however, seemed to complicate the characterization of Sandmann as a bigot or the instigator of the confrontation with Phillips. Ultimately, several prominent media outlets and personalities issued apologies for having rushed to judgment. The Sandmann family, however, has contended that the alleged harm to their son’s reputation and standing in the community was already done and is demanding both compensatory and punitive damages. Continue reading

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Where a blogger posted a blog post accusing photographer of attempting to engage in child pornography and sexual assault, the trial court did not commit an error in concluding that blogger had failed to demonstrate that her blog post constituted protected opinion.

Ronald Ladao filed suit against Lauren Faits, alleging libel and false light. Ladao alleged that in 2016, Faits published several false and defamatory statements about him in a post on her blog, “Geek Girl Chicago.” The statements were contained in a blog post that stated that, in 2003, Faits, then a minor, attended an anime cosplay convention in Chicago. Faits then stated that she and a group of cosplayers went to a hotel room to change out of their costumes, and that they were followed by a photographer, who broke through the locked hotel room door and attempted to get nude photos and/or videos of underage cosplayers, and that the photographer’s name was Ron “Soulcrash” Ladao.

Faits then stated that after she threatened to call the police, Ladao left the room, calling her a rude name on his way out. Faits described the incident as a sexual assault. Ladao alleged that Faits statements that he rushed into a hotel room in an effort to obtain nude photographs of underage girls, and that he committed sexual assault, were libel per se because they accused him of conduct that was damaging to his reputation as a professional photographer and because they accused him of criminal conduct. Ladao alleged that as a result of the blog post he suffered harm to his reputation and career, humiliation, and emotional distress. Continue reading

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Justice Clarence Thomas has just called for a reconsideration of the landmark 1964 case of The New York Times v. Sullivan, but the timing of this call is interesting. It came right after Trump’s complaints that the current libel laws make it too difficult for public figures to win libel lawsuits – disregarding the fact that that’s the point.

According to Thomas, the decision was not Constitutional, nor was it in the spirit of the founding fathers who drafted and ratified the Constitution. Instead, Thomas claims they were policy-driven decisions that were disguised as constitutional law.

Despite the fact that the First Amendment is part of a federal document governing the entire country, Thomas claims the duty of protecting citizens’ rights should remain with the states, claiming the states were perfectly capable of handling cases of libel on their own until the case in question came into existence in 1964 – almost 175 years after the First Amendment was ratified. Thomas thinks the states are able on their own to walk that fine line between encouraging public discussion and providing a reasonable remedy for any potential harm that one’s reputation might suffer, but the facts of the case tell a different story.

The lawsuit was filed by L.B. Sullivan over an advertisement that ran in The Times to support the civil rights movement. Sullivan was a city commissioner for the city of Montgomery, AL. His name wasn’t even mentioned in the ad, but he filed his libel lawsuit anyway and won a whopping $500,000 in the lower courts. It was just one of many such lawsuits filed by Southern politicians as a way to prevent the civil rights movement from gaining national attention.

When the case reached the Supreme Court, all nine judges ruled in favor of The Times. Continue reading

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When a restaurant owner was sued for broadcasting DirecTV and paying only residential subscription rates instead of higher commercial subscription rates, the owner could not seek coverage under the insurance policy. The policy protected against suits for libel, slander, or defamation, and even though DirecTV had alleged that the owner had damaged its reputation, the owner was not alleged to have made any statement, and therefore the facts did not indicate any act of libel, slander, or defamation entitling the owner to a defense of the suit.

Martinsville Corral, Inc. owns two Texas Corral restaurants in Indiana. In December 2013, Society issued an insurance policy to MCI that provided general business liability coverage. MCI also purchased additional coverage under an “Employment-Related Practices Liability Endorsement.” The Endorsement requires Society to cover MCI for “damages resulting from a ‘wrongful act’ to which the policy applies.” Continue reading

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Lubin Austermuehle and Viriant’s Combined Efforts Help Remove Defamatory Internet Posts

Lubin Austermuehle is among a handful of leading lawyers from across the country picked as a member of Viriant’s nationwide network to protect companies, doctors, lawyers, accountants and other professionals from defamation on the cyber smears and internet defamation. We are excited to announce the continuation of our longtime partnership with Viriant.

Lubin Austermuehle has over thirty years of experience representing large and small businesses, and professionals such as lawyers in doctors in protecting their businesses from harmful online defamation and cyber smear attacks. We recently obtained a full retraction and apology for our large diamond wholesale client who was exposed to a sustained and targeted internet smear campaign.  We filed libel per se suit against the perpetrator for $16 million and demanded the retraction and apology as a settlement term.  You learn more about that suit here.

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MG_6325_1-300x200We defend and prosecute cyber smear and internet defamation cases throughout the Chicago area including near Schaumburg, Aurora, and Wheaton.

We have defeated claims against our clients with a number of creative defenses founded on the First Amendment, Innocent Construction or personal jurisdiction defenses.  We have also prevailed against such defenses for our clients who have pursued defamations and slander claims.  We have obtained removal from the internet of commercially defamatory reviews against our business and professional services clients such as doctors and lawyers posted on internet review sites such as Google and Yelp.

You can view here a decision in an internet defamation case involving a negative review on the Rip-Off Report where we successfully defended our client by obtaining a dismissal based on lack of personal jurisdiction. For a detailed discussion of the personal jurisdiction defense in internet defamation cases, you can go to our website.

You can view here a Yelp review by our client who was wrongfully sued for negative Yelp and other reviews against a daycare center that had been closed down by the Department of Children and Family Services for alleged negligent care of young children.

The Digital Media Law Website is a great resource for non-lawyers to learn about defamation law.  It defines defamation as follows:

Defamation

Defamation is the general term for a legal claim involving injury to one’s reputation caused by a false statement of fact and includes both libel (defamation in written or fixed form) and slander (spoken defamation). The crux of a defamation claim is falsity. Truthful statements that harm another’s reputation will not create liability for defamation (although they may open you up to other forms of liability if the information you publish is of a personal or highly private nature).

Defamation in the United States is governed by state law. While the U.S. Constitution sets some limits on what states can do in the context of free speech, the specific elements of a defamation claim can — and often do — vary from state to state. Accordingly, you should consult your state’s law in the State Law: Defamation section of this guide for specific information.

There are many defenses to defamation and slander claims. Our lawyers concentrate in this area and can provide our clients — both plaintiffs and defendants — with considerable resources to guide their claims through the intricacies of these defenses. You can go our two websites to learn more about theses defenses here and here.

Here is a video regarding a client we defended in an internet defamation claim. We settled federal court case in favor of our client after we filed a sanctions motion against the used car dealer plaintiff for filing an allegedly false lawsuit; our client received a full release and all of his videos and negative video reviews remained on the internet after we won an arbitration proceeding against the dealer which was part of the settlement of the federal court suit dismissing all of the claims. Here is a newstory about the case.

You can read the Arbitrator’s decision upholding our client’s rights to keep his videos posted on the internet here.  While the Arbitrator disagreed with our client’s tactics and did not endorse his conduct, he found our client had a First Amendment Right to speak his mind as long as he told the truth or simply voiced his opinions no matter how negative.  The Arbitrator held as follows based on our cross-examination of the Claimant’s owner proving that our client had told the truth when he claimed that the Claimant auto dealership had engaged in consumer fraud in the past and that our client had only made minor errors in his hundreds of postings and video reviews on Youtube of the auto dealership:

There is no issue that Claimant has engaged in false advertising. [It’s owner] has admitted as much and more, including submitting a false affidavit in litigation antecedent to this arbitration. Judgments and pleadings are public records; disseminating this information that is part of a public record is not actionable. In addition, the fact of entry of judgment provides a colorable foundation for the opinions and conclusions published by Bates. As much as the Claimants would like to explain away these events, and as minor a part this conduct has played in comparison with the totality of business operations, the facts are what they are; once in the public domain these facts can be both circulated and commented on.  In addition, insignificant errorata is not actionable in any event, and it is conceded that many postings are of this character.

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Being sued for defamation can be a costly and anxiety-inducing experience. It is essential to understand a bit about what defamation (also referred to sometimes as libel or slander) is and importantly what some of the common defenses and privileges to such a claim are. However, there is no substitute to hiring an attorney skilled and experienced in the area of defamation defense law.

What is Defamation?

Defamation is a false statement made to others that harms a person’s reputation in the community.  Defamation law is based on the premise that a person’s good reputation has value and one who harms that good reputation by making false statements should be made to pay. In Illinois, the plaintiff (the person or business claiming to have been defamed) who makes a claim of defamation generally has the burden of proof (the obligation to put forward evidence).

A defamation claim generally has three elements that the plaintiff the must prove in order to recover damages: (1) a false statement; (2) made to a third party (also known as publication); (3) that harms the plaintiff’s reputation. A plaintiff who proves a defamation claim can recover monetary damages and even an injunction in some cases. Fortunately, there are several common defenses and privileges to a charge of defamation that you can assert to avoid having a defamation judgment entered against you.

Defamation vs. Libel and Slander?

Sometimes you will hear defamation referred to as libel or slander (or that a defendant libeled or slandered the plaintiff). Libel and slander are simply different forms of defamation. Libel is defaming someone in writing. Slander is defaming someone orally. In the past, courts dealt with libel and slander claims differently, and each claim had different elements that needed to be proved along with different defenses. Illinois courts have long since discarded the distinctions between the claims and now simply refer to both types of claims as defamation.

Common Defenses and Privileges to a Charge of Defamation

Truth

Truth is an absolute defense to a charge of defamation. An essential element of a defamation claim is that the allegedly defamatory statement was false. It is not enough simply to prove that the statement damaged the plaintiff’s reputation. The statement must also be false. It is important to note that the statement need not be 100% true in every single detail for this defense to apply. A statement need only be “substantially true” for the defense to apply. This means that the allegedly damaging part of the statement must be true even if some of the minor, peripheral details were not accurate.

In practice, if you are going to say something negative about a business or individual, you should only do so if such a statement is backed up by verifiable evidence. Continue reading

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With all the talk around Roy Moore’s alleged sexual misconduct around young girls, including a Pulitzer-Prize winning article in The Washington Post, it’s hard to believe one actor’s prank could make much of a difference, but Moore alleges it did.

For an episode of his show, Who Is America? that aired on July 29th, Sacha Baron Cohen invited Moore to Washington D.C. under the pretense of an award for Moore’s support of Israel. Instead, Moore met with Cohen disguised as his character, Erran Morad, an Israeli “anti-terrorism expert.”

During a sit-down between “Morad” and Moore, Morad told Moore about a particular enzyme that pedophiles secrete at much higher rates than normal people. He said that Israelis had developed a machine that could detect this enzyme, with the idea being that they could install the machines at school entrances to alert staff of any pedophiles entering the building.

Morad then produced what he claimed was one of these machines, saying it would beep if waved over a pedophile but would remain silent if waved over a normal person. Of course, the “machine” was rigged to beep when waved over Moore, at which point Morad pretended to be confused, claiming the machine must be malfunctioning and asking Moore if the jacket he was wearing belonged to him and whether he had loaned it to anyone recently.

Moore denied the insinuation that he’s a pedophile, pointing to his 33-year-long marriage as evidence and alleging he had never been accused of such things. He eventually ended the interview and left, saying he supported Israel, but not the kind of antics to which he was being subjected. Continue reading