Defamation, Libel and Slander

6th Circuit Finds Trip Adviser List of Dirtiest Hotels to Be Protected From Libel Suits as a Statement of Opinion

October 2, 2013 | Peter S. Lubin and James V. DiTommaso

With various sites on the internet giving ratings to businesses in all sorts of professions, the line between what is protected by the Constitution’s First Amendment and what is not can often get blurry, particularly when the reviews are unfavorable. The trial courts have seen defamation lawsuits pertaining to this again and again.

Recently, the Sixth Circuit Court in Cincinnati rejected a $10 million defamation lawsuit which had been filed by Kenneth Seaton, owner of the Grand Resort, a hotel in Pigeon Forge, Tennessee. The resort was ranked No. 1 on TripAdvisor’s 2011 list of “dirtiest hotels”. Next to the hotel’s top position was a picture of a ripped bedsheet and a quote from a user, claiming that “There was dirt at least 1/2″ inch thick in the bathtub which was filled with dark hair.” The website also included a thumbsdown sign next to the quote as well as a claim that “87% of reviewers do not recommend this hotel.”

According to the Court’s decision, “Seaton filed suit in Tennessee state court, alleging claims for defamation and false-light invasion of privacy.” After TripAdvisor filed a motion to dismiss the case, Seaton amended his complaint to include “trade libel/injurious falsehood” and interference with prospective business relationships. TripAdvisor responded by saying that the list was a statement of opinion and, as such, could not be proven true or false because the rankings on the list as well as the concept of “dirtiest” hotel are inherently subjective. A federal district court in Tennessee dismissed the case and Seaton appealed, landing the case in the lap of the Sixth U.S. Court of Appeals in Cincinnati.

At this point, Digital Media Law Project, in connection with Cyberlaw Clinic, filed an amicus brief in the case in support of TripAdvisor “because of the potential impact of Seaton’s argument on journalistic and academic research.” This is because Seaton’s claims could be construed as “challenging the methodology by which TripAdvisor reached its conclusions based on data collected from its users.” However, TripAdvisor’s systematic method of analyzing crowd sourced data to reach conclusions “echoes important techniques for academic research and data journalism” according to Jeff Hermes of Digital Media Law Project.

According to the Court’s decision, “On the webpage in which the list appears, TripAdvisor states clearly ‘Dirtiest Hotels – United States as reported by travelers on TripAdvisor.’ The implication from this statement is equally clear: TripAdvisor’s rankings are based on the subjective views of its users, not on objectively verifiable facts. With this, readers would discern that TripAdvisor did not conduct a scientific study to determine which ten hotels were objectively the dirtiest in America. Readers would, instead, understand the list to be communicating subjective opinions of travelers who use TripAdvisor.”

However, instead of analyzing the list as an opinion based on disclosed data, the court stated instead that the list was “rhetorical hyperbole.” The court further compared TripAdvisor’s list to other online polls and lists such as “Reader’s Digest’s poll of “100 Most Trusted People in America”. Such a comparison implies that TripAdvisor’s list is not only subjective, but frivolous. Hermes fears that, in doing so, the Court “seems to have confused (1) statements not intended to be taken literally and (2) statements intended to be taken literally that nevertheless reflect a subjective judgment. Both fall within the doctrine of opinion as statements that cannot be proven true or false.”

The Grand Resort closed in 2012 and was bought by a holding company.

You can view the Sixth Circuit’s opinion here.

Statements About Business Owner Did Not Constitute Slander or Libel, According to Illinois Appellate Court – Coghlin v. Beck

September 30, 2013 | Peter S. Lubin and James V. DiTommaso

A business owner who had served as president of a trade association filed a lawsuit alleging slander per se and libel per se for statements made to members of that association and others. She named a former client and her successor as association president, among others, as defendants. After the court granted the defendants’ motion to dismiss, an Illinois appellate court affirmed the dismissal. Coghlan, et al v. Beck, et al, 984 N.E.2d 132 (Ill. App. 2013).

The plaintiff, Angelika Coghlan, was the managing partner of an information technology (IT) company, Catwalk Consulting, Inc. She served as the president of the Chicago chapter of the National Association of Women Business Owners (NAWBO-Chicago) from July 2008 until June 2010. In January 2010, Rebecca Busch, CEO of Medical Business Associates, Inc. (MBA), submitted a request for IT services to NAWBO-Chicago’s member listserv. Coghlan claimed that she contacted Busch directly about the request, then posted the request to the listserv, where all members could see it. Coghlan and Bush entered into an agreement for services, and Catwalk provided IT services to MBA for over a year, billing it more than $150,000. MBA notified Catwalk that it was terminating their contract in March 2011.

Valerie Beck succeeded Coghlan as NAWBO-Chicago president in July 2010, and Coghlan stayed on as a member of the board of directors. Beck prepared a written statement for the board’s April 2011 meeting making various claims against Coghlan. The statement called Coghlan a “corrupt Director,” accusing her of intercepting MBA’s listserv posting “for her own benefit,” and alleging other wrongdoing. Id. at 139. That month, Busch sent a letter to IBM’s Global Financing Division, which had financed the Catwalk contract, alleging that Catwalk never delivered. Id. at 140.

Judge Orders Yelp Review Down — We Defend Consumers Sued For Negative Reviews of a Business

September 27, 2013 | Peter S. Lubin and James V. DiTommaso

Our business attorneys and consumer lawyers have successfully protected businesses from false reviews online and represented consumers wrongly sued to stop them from posting negative reviews about businesses that commit fraud or mistreat their customers.

4th Circuit Federal Appeals Court Rules Clicking Like Button on Facebook can be Protected Speech Under the First Amendment

September 27, 2013 | Peter S. Lubin and James V. DiTommaso

Many of us have heard stories of people losing their jobs over things said or posted on Facebook. The way we communicate has changed dramatically with the invention and increased use of the internet and employers, employees, and the law are still struggling to catch up.

This blog has already discussed a case in which a sheriff fired six of his employees, allegedly for clicking the “Like” button on the Facebook page of his political opponent. One of those workers, Daniel Ray Carter, filed a lawsuit against B. J. Roberts, the sheriff who fired him. The lawsuit alleged that Carter’s First Amendment rights had been violated and it was filed on behalf of Carter and the five other employees who were fired, allegedly for the same reason. The lawsuit sought compensation for lost back pay and front pay or for a reinstatement in their former positions.

Roberts, after his successful 2009 campaign for sheriff’s office, failed to reinstate six of his employees, all of whom had expressed support for his opponent. Roberts claimed he let some of the workers go because he wanted to replace them with sworn deputies. Others, he said, he fired because of poor performance and because he believed that their actions “hindered the harmony and efficiency of the office.” Despite these allegations, the employees he claims to have fired for poor performance both had consistent evaluations of “above average” or “outstanding” and neither of their direct supervisors or second-level supervisors had ever indicated a performance problem.

U. S. District Judge Raymond Jackson in Norfolk ruled in April 2012 that the “Like” button on Facebook is not equivalent to a statement, and is therefore not protected by the First Amendment. He dismissed the case and the plaintiffs appealed.

In his ruling, Jackson admitted that there have been other courts which have ruled that Facebook posts are constitutionally protected speech. However, he argues that, in those cases the speech in question involved “actual statements” rather than simply clicking a button.
Jackson’s ruling was criticized by constitutional lawyers who argued that other speech conducted online, such as uploading a video, or donating money to a campaign, is protected under the First Amendment, despite the fact that they involve nothing more than the click of a button.

The three-judge 4th Circuit federal appeals court disagreed with Jackson’s decision, ruling instead that Carter’s use of the “Like” button was both “pure speech” and symbolic expression. U.S. Circuit Judge William Traxler compared clicking the button to posting a political campaign sign in a front yard, which is protected under the First Amendment. “On the most basic level,” said Traxler, “clicking on the ‘like’ button both literally causes to be published the statement that the User ‘likes’ something with is itself a substantial statement. That a user may use a single mouse click to produce that message that he likes the page instead of typing the same message with several individual key strokes is of no constitutional significance.”

The appeals court unanimously ruled that clicking Facebook’s “Like” button was protected speech. It therefore partially reversed the lower court’s ruling and reinstated the claims of Carter and two of the other employees who sued. It determined, however, that the three other employees had not provided sufficient evidence that their support of Roberts’s opponent was the reason they were not reinstated.

The court also ruled that Roberts is immune from any monetary judgment. As an “arm of the State” he is “immune from suit for claims against him in that capacity”. He is not immune, however, from the plaintiffs’ claims for reinstatement.

You can view the entire appellate decision here.

Doctor Asserts Slander Claims Over Accusation of Negligence During Surgery – Tunca v. Painter

September 16, 2013 | Peter S. Lubin and James V. DiTommaso

An Illinois appellate court reversed a circuit court order dismissing a doctor’s lawsuit for slander per quod against two colleagues. Tunca v. Painter, et al, 965 N.E.2d 1237 (Ill. App. 2012). Two doctors who worked at the same hospital as the plaintiff alleged that the plaintiff was negligent during a surgery, resulting in injury to the patient. The plaintiff alleged that their statements were defamatory, causing damage to his professional reputation and a decline in patient referrals. After the circuit court dismissed multiple claims of slander per se and per quod, the plaintiff appealed. The appellate court held that the defendants’ statements were slanderous on their face, and ruled in the plaintiff’s favor.

The plaintiff, Dr. Josh Tunca, is a surgeon specializing in gynecological oncology. Defendant Dr. Thomas Painter is a vascular surgeon who worked at the same hospital. Defendant Dr. Daniel Conway was chairman at the time of the hospital’s quality review committee. After Dr. Tunca performed surgery to remove an ovarian tumor in June 2006, a severe blood clot formed in the patient’s femoral artery. Dr. Painter performed a femoral-femoral bypass, correcting the condition. Id. at 1241. Dr. Painter allegedly told the hospital’s vice president and medical affairs director that Dr. Tunca had “inadvertently cut the [patient’s] left iliac artery,” and made similar statements to other doctors. Id. at 1241-42. Dr. Conway allegedly spoke to Dr. Tunca, in the presence of other doctors, “regarding his allegedly cutting the [patient’s] artery.” Id. at 1242.

Dr. Tunca filed suit against Drs. Painter and Conway in July 2007, alleging slander per se against both defendants. This is a claim that the statements in question are unambiguously defamatory. He claimed that their statements, made in the presence of others, were “false, malicious, slanderous, and…inten[ded] to injure plaintiff’s good name and credit in his profession.” Id. After several dismissals of his slander claims, the plaintiff filed a third amended petition alleging slander per quod against both defendants, adding allegations that the defendants’ statements had been “disseminated throughout the hospital,” affecting his ability to treat patients and his ability to get new patients. Id. at 1245. After the Cook County Circuit Court dismissed these claims, the plaintiff appealed.

Courts Dismisses Defamation Claims Brought as Part of Employment Discrimination Lawsuit – Artunduaga v. University of Chicago Medical Center

September 14, 2013 | Peter S. Lubin and James V. DiTommaso

An Illinois federal district court dismissed claims of defamation per se and defamation per quod brought as part of a lawsuit alleging employment discrimination, holding that the statements in question amounted to non-actionable opinion. Artunduaga v. University of Chicago Medical Center, at al, No. 12 C 8733, mem. op. (N.D. Ill., May 16, 2013). The motion before the court only sought dismissal of the defamation claims and a claim for intentional interference with employment. The court stated that the statements at issue, while not legally defamatory, could still support the plaintiff’s employment discrimination claims. The case identifies the elements necessary to support a defamation claim under Illinois state law.

The plaintiff began a residency at the University of Chicago Medical Center (UCMC) in June 2011, under the supervision of defendant Dr. David Song. She met with Dr. Song and others in November 2011 in order to discuss her “unsatisfactory performance.” Id. at 2. A memorandum summarizing the meeting was sent to multiple hospital employees. The plaintiff was later placed on probation, and she eventually learned that her one-year contract would not be renewed. Dr. Song sent her a letter on April 30, 2012 that reportedly summarized her employment status and gave her an assignment for the remainder of her residency, with copies to two hospital officials. At a grievance hearing regarding the plaintiff on May 16, 2012, Dr. Song read aloud an email from another doctor containing criticisms of the plaintiff. The plaintiff claimed that Dr. Song added his own “critical assessment[s]” of her performance. Id.

Television Crime Program Reenactment Leads to Defamation, False Light Lawsuit – Butler v. Discovery Communications

September 10, 2013 | Peter S. Lubin and James V. DiTommaso

A television reenactment of a bombing, in which a man suffered severe injury and his friend lost his life, did not give rise to claims for false light invasion of privacy or defamation, according to an Illinois federal court. Butler v. Discovery Communications, LLC, No. 12 cv 6719, mem. op. (N.D. Ill., May 9, 2013). The court found that the reenactment’s portrayal of the plaintiff, while different from the plaintiff’s account of the incident, did not portray the plaintiff in an offensive or damaging fashion, nor did it harm the plaintiff’s reputation in a manner constituting defamation.

The defendant, Discovery Communications, broadcast an episode of its show “Wicked Attraction” on June 15 and July 7, 2012, about an incident involving the plaintiff, Alphonso Butler, that occurred on February 15, 2000. Butler was with his “best friend,” Marcus Toney, that night, when Toney received a package from his estranged wife. Id. at 1. According to Butler, Toney asked him to open the package, but then stepped between Butler and the package and opened it himself. The package contained a pipe bomb that exploded when Toney opened the box. The blast killed Toney and injured Butler. Toney’s wife and her boyfriend are in prison for his murder.

Online Defamation — Our Chicago Libel Attorneys Defend and Prosecute Online Slander and Libel Cases

September 5, 2013 | Peter S. Lubin and James V. DiTommaso

//www.youtube.com/watch?v=fGR6M8PnXiE

Libel Complaint Can Proceed Against National Review For Attacking Climate Change Scientist — Our Chicago Slander Lawyers Prosecute and Defend Libel Cases

August 30, 2013 | Peter S. Lubin and James V. DiTommaso

While scientists have gathered convincing evidence to support the theory of global warming, many remain skeptical. Where the skeptics might find themselves in trouble is when they allegedly wrongly accuse scientists of manipulating data to reach false conclusions. Such is the case with scientist Michael Mann and National Review, which ran an article last summer accusing Mann of implementing fraud in his research.

Mann was one of a group of researchers that developed the climate change model known as the “hockey stick graph”. This graph shows a dramatic rise in global temperature at the end of the last millennium. Many of those who refuse to believe that climate change is real have criticized Mann and his work. Several investigations have been conducted over the years into Mann’s research methods. They have all cleared him of any wrongdoing.

These investigations, though, were not enough for the author of the National Review Article, which drew comparisons between Mann and former assistant football coach, Jerry Sandusky, who was convicted of child molestation. The article questioned the validity of a particular investigation by Penn State which cleared Mann of any wrongdoing. According to the article, the University’s investigation of Sandusky’s conduct and the investigation of Mann’s research methods both took place under former Penn State President Graham Spanier. The article quoted a July 13 post from the Competitive Enterprise Institute’s blog, which said that Mann “could be said to be the Jerry Sandusky of climate science, except that instead of molesting children, he has molested and tortured data in the service of politicized science.”

The defendants argued that the statements were opinion and rhetorical hyperbole and therefore protected under the Constitution’s First Amendment. They filed a motion to dismiss under strategic lawsuit against public participation (SLAPP). SLAPP is a District of Columbia law which bars plaintiffs from filing lawsuits against plaintiffs with the aim of intimidating them into silence by burdening them with the cost of legal defense until they abandon their criticism. Most SLAPP plaintiffs do not expect to win their cases, hoping instead to achieve their goals through intimidation, mounting legal costs, or simple exhaustion before the case advances very far.

District of Columbia Superior Court Judge Natalia Combs Greene denied the motions to dismiss, having found that the article’s statements crossed the line from opinion to factual assertions. At this stage of the proceedings, Judge Combs Greene allowed that the criticism of Mann’s work may be fair but that is not currently the issue. The issue is whether or not Mann has a valid complaint against the defendants and, since they presented their statements as facts, rather than opinions, Mann has the right to defend his reputation in a court of law. According to the judge’s written statement, “there is a strong probability that the [National Review] Defendants disregarded the falsity of their statements and did so with reckless disregard.

In another recent case reviewed by our Chicago libel lawyers, in the District of Columbia’s Court of Appeals, the appellate court issued an order which found that the anti-SLAPP statute didn’t provide for interlocutory review. This means that National Review cannot appeal the judge’s decision to deny their motion to dismiss. The next stage of the case is discovery.

Verdict for Defendant in Libel Suite and Award of $100,000 to Defendant Under SLAPP Statute Reversed

August 30, 2013 | Peter S. Lubin and James V. DiTommaso

Many people file libel lawsuits simply in retaliation against those who acted or spoke out against them. For this reason, once a libel lawsuit has been filed, the first thing the court does under Illinois new SLAPP statute, if the speech at issue involves petitioning the government, is give the defendant a chance to prove that the lawsuit is simply retaliatory and without merit.

Such was recently the case in a lawsuit between two lawyers, one the former employer of the other. The defendant, Clinton Krislov, is the sole shareholder of Krislov & Associates and former employer of Robert J. Stein. Stein worked for Krislov’s firm from 1994 to 2001 before going to work for a new firm. The new firm happened to be one of three firms representing the plaintiffs in a motion for class certification in an unrelated class action lawsuit.

One of the requirements for attaining class certification is proof that the attorneys representing the plaintiffs are competent in class action lawsuits. In order to prove this, attorneys frequently list their history and qualifications as part of the motion for class certification. Krislov happened upon this motion for class certification while conducting unrelated research and took interest in the section describing Stein’s legal experience. In June 2005, Krislov sent a letter to the judge in the case, claiming that Stein’s statements referring to his experience were

“simply misstatements, known to the filers to be untrue.”

The judge then contacted Stein and his fellow attorneys in the case and provided them with a copy of Krislov’s letter. Stein responded by disputing Krislov’s claims and providing documentation to support his experience. Krislov then sent a letter to the judge in reply to Stein’s letter and Stein filed an amended complaint against Krislov, alleging libel and libel per se. Stein also alleged that Krislov owed him vacation and bonus pay from when he had worked as an employee of Krislov & Associates. Krislov argued that the letter to the judge had been privileged information and, initially, the trial court agreed and dismissed the libel lawsuit.

Stein moved to reconsider though, and the trial court reversed its decision. Krislov filed another motion to reconsider, but the court held firm this time. In its decision, the court found that only communication which called into question professional acts could be considered privileged. As it is, the court argued that, “[a]bsolute privileges must be narrowly construed, and where an attorney has injected himself into litigation with which he has absolutely no connection, we do not find that any kind of absolute privilege exists’ and that Krislov had absolutely no duty under the Illinois Rule of Professional Conduct to report misconduct elsewhere.”

Krislov then filed another motion to reconsider, arguing that he was immune to the libel lawsuit under the Citizen Participation Act (CPA). The CPA was designed to prevent Strategic Lawsuits Against Public Participation (SLAPP). SLAPP lawsuits are lawsuits without merit which are filed by the plaintiff without any intention of winning the case. Rather, the aim is to distract or discourage defendants from participating in behavior which the plaintiff might view as threatening. SLAPP lawsuits are known for sucking time and resources from the defendants and from the courts so it is in everyone’s best interest to stop them at an early stage.

The court agreed with Krislov’s motion to reconsider on these grounds and awarded almost $100,000 to Krislov for attorney fees and costs. Stein filed a motion to reconsider, arguing that Krislov’s actions were not protected under the CPA and that the court should have considered the libel claims separately from the wage claims. The court disagreed and Stein appealed the decision.

The appellate court looked first at the question of whether the letter sent from Krislov to the judge was privileged. Communications between lawyers about other lawyers may be privileged in certain instances, particularly since lawyers have a duty to report unethical behavior of other lawyers when they are aware of it. Actions which lawyers undertake to report these actions are protected from legal retaliation but the appellate court found that the unsigned letter that Krislov sent to the judge did not qualify for this protection. The court cited Restatement of Second Torts in its decision, pointing out that

“An attorney of law is absolutely privileged to publish defamatory matter concerning another in communications preliminary to a proposed judicial proceeding, or the institution of, or during the course and as part of, a judicial proceeding in which he participates as counsel.”

Since Krislov was not in any way involved the case at issue, he is ineligible for this protection.

The court then considered the CPA claims. A defendant filing under the CPA is responsible for proving that the lawsuit has no merit and is merely a retaliatory move. According to the appellate court, Krislov failed to do this. Instead, the court acknowledged both the legitimacy of the libel lawsuit as well as wage allegations. The court remanded the case.

You can view the Appellate Court’s opinion here.