Articles Posted in Defamation, Libel and Slander

Under Illinois law, various defenses are recognized for libel actions. The first defense is the innocent construction doctrine. This doctrine posits that if a statement could be construed in a non-defamatory way, it cannot be considered defamatory.

Another defense is the expression of opinion. Statements of opinion, even if they are defamatory, do not result in a defamation claim if the statement cannot be reasonably interpreted as stating actual facts. The statement must have a precise and readily understood meaning, be verifiable, and its literary or social context should signal that it has factual content.

The defense of truth is also recognized. A defamatory statement can be defended if it is substantially true and was published with good motives and for justifiable ends. This is reflected in the Illinois Constitution which states: “In trials for libel, both civil and criminal, the truth, when published with good motives and for justifiable ends, shall be a sufficient defense”. It is enough to show that the publication is “substantially true”, or that the “gist”, the “sting”, or the “substantial truth” of the defamation can be justified.

The defense of ‘fair comment’ is another possible defense. In addition, there is a defense of privilege as a means for redressing grievances. Continue reading ›

In general, you can be sued for posting internet reviews, even if they are truthful and critical, but the likelihood of the lawsuit being successful depends on various factors. Here’s a breakdown of the legal considerations:

  1. Truth as a Defense: Truth is a key defense against defamation claims. In most jurisdictions, if the statements you made in your review are true or are your genuine opinion, it’s less likely that a defamation lawsuit against you would succeed.
  2. Opinion vs. Fact: Expressing an opinion is typically protected speech, but stating something as a fact that can be proven false could lead to legal issues. For example, saying “I think this restaurant has the worst service” is an opinion, whereas saying “this restaurant has health violations” when it does not, is stating a false fact.
  3. Public vs. Private Figures: Public figures, like celebrities and politicians, have a higher threshold to prove defamation. They must prove that the statement was made with actual malice or reckless disregard for the truth. Private individuals only need to prove that the statements were false and damaging.
  4. Context Matters: The context of your review can also be important. If the review is posted on a platform known for hyperbolic or humorous reviews, it might be taken less seriously than a review on a more formal platform.
  5. Local Laws: Defamation laws vary widely by country and even by state or province within countries. Some places have stricter laws about what constitutes defamation.
  6. Retractions and Apologies: In some cases, retracting a statement or issuing an apology can mitigate damages or even negate a defamation claim.
  7. SLAPP Lawsuits: Some lawsuits, known as Strategic Lawsuits Against Public Participation (SLAPP), are filed to intimidate or silence critics by burdening them with the cost of legal defense. Many jurisdictions have anti-SLAPP statutes that protect individuals from these kinds of lawsuits.
  8. Insurance: Many homeowners insurance policies or umbrella policies provide libel defense insurance. You should retain independent legal counsel to deal with your insurance carrier as the carrier’s have a conflict of interest since the policies exempt intentional misconduct which libel claims often encompass.

It’s always advisable to be thoughtful and factual in online reviews and to understand the potential legal implications of what you post online. If you are concerned about a specific situation, consulting with a legal professional is recommended. Continue reading ›

In the realm of defamation law, the distinction between public and private figures holds significant weight. Public figures have a higher burden of proof when pursuing defamation claims due to their assumed access to media platforms and the assumed public interest in their lives or opinions. However, what happens when someone becomes an involuntary public figure, particularly in the context of Illinois law?

In Illinois, as in many other jurisdictions, individuals may become involuntarily thrust into the public eye due to circumstances beyond their control. The legal concept of involuntary public figures was established in the famous case of involving a well known Illinois lawyer Elmer Gertz. This case sets out the framework for the doctrine: Justice Mikva in DC federal  appeals decision, Dameron v. Washington Magazine, Inc., 779 F.2d 736, 742 (D.C. Cir. 1985) provides a very good description of the doctrine:

By sheer bad luck, Dameron happened to be the controller on duty at the time of the Mt. Weather crash. As in Gertz, Dameron “assume[d a] special prominence in the resolution of [a] public question[ ].” Gertz at 351, 94 S.Ct. at 3012. He became embroiled, through no desire of his own, in the ensuing controversy over the causes of the accident. He thereby became well known to the public in this one very limited connection. The numerous press reports on the Mt. Weather crash introduced by the defendants in their motion for summary judgment amply demonstrate this. Dameron’s name and likeness were often used in these reports. See R.E. at 134–49 (reproducing articles from The Washington Post, The Star-News, UPI and the PATCO Newsletter). It was in that same very limited connection that The Washingtonian’s brief and oblique reference to him surfaced years later.
Paradoxically, the magazine article never mentions Dameron’s name or other identifying characteristics. If Dameron had not been previously linked with accounts of the tragedy, no magazine reader could tie the alleged defamation to Dameron. Indeed, it was partly because of the defendant’s public notoriety that he was identifiable at all from the oblique reference in The Washingtonian.
There is a marked contrast between the controlling facts of this case and the facts of Time, Inc. v. Firestone, 424 U.S. 448, 96 S.Ct. 958, 47 L.Ed.2d 154 (1976), a case Dameron claims shows that he was not a public figure. Indeed, Firestone butresses our conclusion that Dameron is a public figure for the limited purpose of discussion of the Mt. Weather crash. In Firestone the scion of a prominent family of industrialists was sued for divorce. The charges and countercharges in the suit were sensational and the press displayed a great deal of interest in the proceedings. The Court, however, declined to find Mrs. Firestone even a limited-purpose public figure merely because of her much-publicized divorce trial. The Court found that Mrs. Firestone’s resort to the judicial process to arrange her marital affairs was, for all practical purposes, involuntary and that the controversy, if any, over her marriage and divorce was a private one. Id. at 454–55, 96 S.Ct. at 965–66. The Court said that “even though the marital difficulties of extremely wealthy individuals may be of interest to some portions of the reading public” a divorce proceeding was not a public controversy. Id. at 454, 96 S.Ct. at 965. That is, public interest in a controversy does not make a public controversy. The newsworthiness of an event is not the measuring stick for identifying public controversy. Nor is a voyeuristic interest in someone’s private affairs an appropriate substitute. Dameron’s situation, however, is far removed from that of Mrs. Firestone. Dameron was at the center of a controversy involving the loss of many lives in a mishap involving a public carrier. At issue was the management of a program administered by the FAA, an arm of the government. Another governmental agency—the NTSB—conducted an extensive, public investigation into the events surrounding the Mt. Weather Crash. Dameron appeared at these hearings and testified for many hours about his role in the crash. The hearings, and Dameron’s role in them, were widely publicized. We think that, like it or not, Dameron was embroiled in a public controversy.

The Illinois courts or federal courts interpreting Illinois law, like other courts around the country, have recognized that some individuals, despite being private citizens, can become involuntarily involved in public controversies or discussions. In these situations, they may temporarily take on the role of a public figure for the limited context of that particular controversy. For instance, someone who becomes part of a widely covered news story or controversy, such as a victim of a high-profile crime or a witness to a significant event or a reputed mobster who has a high profile and been indicted but not convicted, might be considered an involuntary public figure for the duration or context of that particular issue.

However, meeting the criteria for involuntary public figure status is not a simple task. The courts evaluate various factors, such as the extent of media coverage, the person’s role in the events, and whether the individual has voluntarily sought public attention. Additionally, the Illinois courts consider whether the allegedly defamatory statements are related to the public controversy that led to the individual’s involuntary public figure status.

Despite being classified as an involuntary public figure, individuals in Illinois are not stripped of all protection against defamation. They still possess the right to seek legal recourse if defamatory statements are made about them. However, the burden of proof or the elements needed to be proved (i.e. wilful or intentional disregard of the truth) may be higher compared to that of a private individual due to the limited-purpose public figure status they’ve acquired.

It’s essential to understand that defamation law can be intricate, and each case is evaluated on its unique circumstances. If you believe you’ve been the subject of defamatory statements in Illinois, seeking legal counsel to assess your situation is crucial. Understanding the nuances of involuntary public figure status and how it pertains to defamation law can significantly impact the outcome of a case.

In conclusion, Illinois recognizes the concept of involuntary public figures and provides certain protections in defamation cases. The courts carefully analyze the circumstances surrounding an individual’s involvement in a public controversy to determine their status. If you find yourself in such a situation, consulting a legal professional who specializes in defamation law is advisable to navigate these complexities effectively.

You can read an interesting law review article on the topic here.

Continue reading ›

In the digital age, where information spreads rapidly across various platforms, businesses are susceptible to reputational harm through false statements or misleading information. Business libel, a form of defamation, can significantly impact a company’s reputation, credibility, and ultimately, its bottom line. Understanding what constitutes business libel and how to protect your business is crucial in safeguarding its reputation.

What is Business Libel?

Business libel refers to false and damaging statements or representations made about a business, its products, services, or practices. This defamation can occur through various mediums such as online reviews, social media posts, articles, or spoken statements. These false statements can negatively impact the company’s brand image, customer trust, and even its relationships with stakeholders.

Elements of Business Libel:

For a statement to be considered libelous against a business, it typically must fulfill the following criteria:

  1. False Statement: The statement in question must be untrue or misleading.
  2. Publication: The false statement must be communicated to a third party, whether through written, spoken, or digital means.
  3. Harm: The false statement must have caused or have the potential to cause harm to the business’s reputation or financial standing.
  4. Negligence or Intent: In some cases, proving that the false statement was made either negligently or with malicious intent can strengthen a business’s libel claim.

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In today’s digital age, where information spreads at the speed of light and opinions are shared freely, libel, defamation, and internet slander have become increasingly common issues. When your reputation is at stake, it’s crucial to understand the complexities of libel law and the defenses available to protect your rights. This blog post aims to shed light on this intricate area of law and the importance of seeking expert legal counsel, exemplified by Lubin Austermuehle, a law firm with decades of experience in handling libel and defamation cases for a diverse range of clients.

The First Amendment: Balancing Rights and Responsibilities

At the heart of libel law in the United States lies the First Amendment to the Constitution, which protects freedom of speech. This fundamental right, however, is not without limits. While individuals have the right to express their opinions, they are also responsible for the consequences of their words, particularly when they cause harm to someone’s reputation. Continue reading ›

In the dynamic landscape of condominium and homeowners’ associations (HOAs), board officers and directors are tasked with making crucial decisions to maintain the welfare of their communities. However, there are times when disputes arise, leading association members or condo owners to bring legal action against these leaders. At Lubin Austermuehle — the Business Litigators, we concentrate on defending condominium and HOA board officers and directors facing lawsuits under Illinois law. In this blog post, we will explore the unique legal challenges in Illinois and our legal team’s indispensable roles in safeguarding these community leaders.

Understanding Illinois Condo & HOA Governance

Illinois, like many states, has a comprehensive set of laws and regulations governing condominiums and homeowners’ associations. These laws define the roles and responsibilities of board officers and directors, as well as the rights and obligations of association members or condo owners. Compliance with these laws is essential to maintaining the harmony and functionality of these communities.

Common Legal Issues Faced by Board Officers and Directors in Illinois

Board officers and directors in Illinois can find themselves entangled in various legal disputes, including:

  1. Breach of Fiduciary Duty: Board members owe a fiduciary duty to the association members or condo owners. Allegations of mismanagement, conflicts of interest, or self-dealing can lead to claims of breaching this duty.
  2. Failure to Enforce Declarations and Bylaws: Ensuring the consistent enforcement of community rules and regulations is a crucial responsibility of board members. Failure to do so can result in legal actions by residents who believe their rights have been violated.
  3. Financial Mismanagement: Improper handling of association funds, budgetary issues, or a lack of transparency in financial matters can lead to allegations of financial mismanagement and legal consequences.
  4. Discrimination and Fair Housing Act Violations: Board officers must ensure that all residents are treated fairly and in compliance with fair housing laws. Allegations of discrimination can result in legal action under both state and federal laws.
  5. Contract Disputes: Board officers and directors often enter into contracts for services and maintenance. Disputes can arise if one party feels that the terms of the contract have not been fulfilled.

Continue reading ›

In today’s digital era, online reviews wield substantial influence, helping consumers make informed decisions about products, services, and businesses. However, the power of user-generated reviews can sometimes lead to contentious situations, particularly when individuals or entities face accusations of internet libel due to their posted reviews. Understanding the defense mechanisms available to individuals posting online reviews is essential in safeguarding their rights while responsibly exercising their freedom of expression.

The Impact of Online Reviews:

Online reviews play a pivotal role in consumer decision-making. They offer insights, opinions, and firsthand experiences that influence potential customers’ perceptions. However, negative reviews can occasionally lead to accusations of libel if they’re perceived as defamatory or damaging to a business or individual. Continue reading ›

The First Amendment right to freedom of the press is fundamental to a democratic society, but it’s not absolute. Journalists and media organizations must strike a balance between reporting the news accurately and protecting individuals’ reputations. In Illinois, the fair reporting privilege defense serves as a crucial legal safeguard against libel claims when reporting on matters of public interest. In this blog post, we’ll explore the fair reporting privilege in Illinois, its significance, and how it applies to libel cases.

Understanding the Fair Reporting Privilege

The fair reporting privilege is a legal doctrine that protects journalists and media outlets from defamation claims when reporting on matters of public interest. It recognizes the importance of a free press in informing the public and encourages open and honest reporting. The privilege allows reporters to cover governmental proceedings, official statements, and public documents without fear of defamation liability, even if the information later proves to be incorrect.

Key Elements of the Fair Reporting Privilege in Illinois

To successfully assert the fair reporting privilege defense in Illinois, several key elements must be met:

  1. Public Interest: The report must involve a matter of public interest. This typically includes governmental actions, public meetings, official statements, and other topics that are of concern to the public.
  2. Accuracy: While the privilege protects reports that are substantially accurate, it does not cover intentionally false statements or reckless reporting. Journalists must still exercise reasonable care in verifying the information they report.
  3. Fair and Neutral Reporting: The report should be fair and neutral, presenting the facts without undue bias or distortion. Deliberate attempts to harm someone’s reputation with willful false statements will not be protected.

Continue reading ›

Efforts by an alleged perpetrator and his legal team to unmask a Jane Doe plaintiff (by revealing her name) were held dead on arrival by the Illinois Appellate Court today. Our firm assisted lead counsel Tamara Holder with the appellate briefs. In these types of matters, our firm concentrates on defending alleged sexual assault victims who are allegedly revictimized by being subject to what we advocate, on our client’s behalf, in court papers, are strike suits for defamation or libel. This practice of suing the alleged victim for libel or defamation is, unfortunately, becoming an all too common tactic to, we contend, try to bully them into silence or to retract their claims.

The forceful and well-reasoned concurring opinion by Justice Hyman explains why efforts to expose the names of alleged victims of sexual misconduct or assault is a pernicious practice. The opinion provides guide posts for courts in Illinois and across the country to encourage alleged sexual misconduct or assault victims to seek justice, without having to suffer more trauma due to their names being spread all over the internet. It also notes that the alleged perpetrator should have similar privacy rights prior to a judgment on guilt or innocence.

The concurring opinion states:

In a world where the Internet already has created privacy, confidentiality, and security issues, we now enter the age of artificial intelligence, exacerbating these issues and making secrecy vital. No longer, in famous observation of Justice Brandeis almost 100 years ago, is “right to be let alone” enough. Olmstead v. United States, 277 U.S. 438, 478 (1928) (Brandeis, J., dissenting). In the 21st century, the right to be left unknown will join the right to be let alone as a vexing subject of intense legal debate. Indeed, the question of anonymity has taken on increased significance as court records have become readily available to the general public through even casual Internet searches. As the appellant notes in his brief, a Google search of a litigant’s name can produce an untold number of articles describing the lawsuit. Those articles may be available online for a lifetime, unless kept confidential. Although Illinois case law offers slight guidance on petitions to proceed anonymously, an alleged victim deserves anonymity whether or not their identity has been divulged elsewhere, including in a case not brought by them. …

Although no reported Illinois cases address whether a claim of sexual violence constitutes an “exceptional” situation warranting the use of a pseudonym, federal courts in Illinois have recognized that allegations of sexual assault are “highly sensitive, personal matters that involve the disclosure of information of the utmost intimacy.” Doe v. Cook County, Illinois, 542 F. Supp. 3d 779, 786 (N.D. Ill. 2021); accord Doe No. 2 v. Kolko, 242 F.R.D. 193, 195 (E.D.N.Y. 2006) (while the Seventh Circuit disfavors fictitious names, it has “recognized that sexual assault victims are a paradigmatic example of those entitled to a grant of anonymity” (citing Doe, 112 F.3d at 872)). Even so, a sexual violence allegation alone has been considered not dispositive. See Cook County, Illinois, 542 F. Supp. 3d at 786 (“allegation of sexual assault alone does not end the inquiry”); Doe v. Skyline Automobiles, Inc., 375 F. Supp. 3d 401, 405-06 (S.D.N.Y. 2019) (“other factors must be taken into consideration and analyzed in comparison to the public’s interest and the interests of the opposing parties”).

Illinois has taken steps to protect individuals’ private information. Examples include the Personal Information Protection Act (815 ILCS 530/1 et seq. (West 2022)), and the Biometric Information Privacy Act (740 ILCS 14/1 et seq. (West 2022)), and two laws regulating data obtained by artificial intelligence, the Artificial Intelligence Video Interview Act (820 ILCS 42/5 (West 2022)) and the Illinois Health Statistics Act (410 ILCS 520/1 et seq. (West 2022)). Nonetheless, the law cannot keep pace with the speed of innovations, compromising privacy. Corinne Moini, Protecting Privacy in the Era of Smart Toys: Does Hello Barbie Have A Duty to Report?, 25 Cath. U.J.L. & Tech. 281, 299 (2017) (asserting that privacy torts do not provide adequate protection for privacy implications of artificial intelligence and data collection). When methods of intruding into private lives and stripping anonymity outpace lawmakers’ ability to address them, courts have a duty under existing rules of procedure to protect sexual assault and abuse victims.

Plaintiff, a minor when the alleged sexual assault occurred, undeniably constitutes an “exceptional” situation. The lawsuit involves matters of a highly personal nature warranting anonymity. Indeed, Illinois Supreme Court rules acknowledge the need for anonymity in cases involving minors. For instance, the Illinois Supreme Court rules provide that minors shall be identified by first name and last initial or by initials in adoption cases (Ill. S. Ct. R. 663 (eff. Oct. 1, 2001) and appeals involving the Juvenile Court Act of 1987 (705 ILCS 405/1 et seq. (West 2022)). Ill. S. Ct. R. 660(c) (eff. Oct. 1, 2001). Moreover, the Style Manual for the Supreme and Appellate Courts of Illinois (5th ed. rev. 2017) provides for using the minor’s initials in cases involving the Department of Children and Family Services. These rules reflect the need to protect the identity of a minor in matters of a personal nature that involve potentially stigmatizing issues such as termination of parental rights or juvenile criminal conduct.  An alleged victim of sexual violence has similar reasons for protecting their identity when filing a lawsuit under the Gender Act. The alleged conduct involves highly personal conduct likely to embarrass and stigmatize, regardless of its availability on the Internet. Thus, I would find that an alleged victim has a compelling reason to proceed anonymously when filing a complaint. Similarly, an accused perpetrator should be able to seek anonymity on petition….

The appellant contends that Doe waived her right to proceed anonymously because she filed an affidavit supporting a motion to dismiss the defamation lawsuit the appellant filed against his other accusers. (The appellant added Doe as a defendant in the defamation litigation after she filed her complaint.) I must disagree that she waived her right. When Doe filed the affidavit in the defamation case, she had yet to file her complaint against defendant. The decision to help another litigant should not bar an individual from proceeding anonymously in their own lawsuit, regardless of an affidavit in another proceeding. Filing suit creates a different level of exposure than filing an affidavit in support of others.

You can read the entire opinion here. Continue reading ›

Here are some important Illinois libel law decisions.

1. “Continental Nut Co. v. Robert L. Berner Co.” (Decided April 15, 1965): A corporation’s libel action complaint, which specifically alleged figures of gross sales before and after publication and that the decrease was the result of the publication, sufficiently alleged special damages, even without naming customers lost.

2. “Fried v. Jacobson” (Decided June 23, 1982, but note that the judgment was vacated on December 1, 1983): It was held that broadcasts which stated that the Internal Revenue Service was considering legal action against an attorney and that 32 suits were filed by the state’s attorney against the attorney and his company were not libel per se. The same case on its later date confirmed that an action for defamation based on libel per se requires that the words used are in and of themselves so obviously and naturally harmful that proof of special damages is unnecessary.

3. “Cantrell v. American Broadcasting Companies, Inc.” (Decided October 1, 1981): This case clarified the four categories of words which constitute libel per se under Illinois law.

4. “Brown & Williamson Tobacco Corp. v. Jacobson” (Decided July 14, 1983): To allow a corporation to recover on a theory of libel per se under Illinois law, it must show that it has been accused of fraud, mismanagement, or financial instability.

5. “Paul v. Premier Elec. Const. Co.” (Decided March 22, 1984): This case established that under Illinois law, four categories of speech define libel per se.

6. “BASF AG v. Great American Assur. Co.” (Decided April 14, 2008): While not a libel case per se, it discusses the interpretation of an insurance policy that defined an advertising injury as a violation of a person’s right of privacy, which could be relevant in the context of libel .

7. “Costello v. Capital Cities Communications, Inc.” (Decided December 15, 1988): This case involved a libel action filed against Capital Cities Media, Inc. and the editor of a newspaper’s editorial page. The complaint was dismissed for failure to state a cause of action].


These decisions underscore the need to carefully consider the nature of the speech, the status of the individuals involved, and the role of online platforms in defamation cases. While free speech is a cherished right, it must be balanced with protection against false and harmful statements. As libel law continues to adapt to the digital age, these decisions provide valuable insights into the evolving landscape of defamation in Illinois. It is essential for individuals, media outlets, and online platforms to stay informed about these developments to navigate the complexities of libel law successfully. Continue reading ›

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