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Common Defenses and Privileges to Defamation

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.

Opinion and Rhetorical Hyperbole

Opinion and hyperbole are two closely related defenses to libel or slander that assert, in essence, that the defamatory statement didn’t cause harm because it wasn’t meant to be taken as factual. An opinion is understood to be a subjective statement of the speaker’s beliefs. Opinion as a defense is highly dependent on context. If in its proper context people hearing the statement would have understood it to be opinion, the courts will not impose liability.

Similarly, rhetorical hyperbole is a statement that uses exaggerated language to emphasize a point. It is understood that hyperbolic language is used figuratively and is not meant to be literal. Because, like opinion, rhetorical hyperbole is not a statement of fact, no liability attaches to such a statement.

A recent case highlighting both defenses was Stormy Daniels’s defamation lawsuit against President Trump. The suit centered on a statement by the President that Ms. Daniels had engaged in a “total con job” by releasing a sketch of a man she claimed had threatened her not to disclose her previous affair with the President. In dismissing the claim, the judge ruled that the President’s language was opinion and rhetorical hyperbole meant to emphasize his disapproval of Ms. Daniels. It was not, the judge held, to be understood as a statement of fact.

Litigation and Fair Reporting Privileges

The litigation and fair reporting privileges protect those involved in or who report about litigation from liability for defamation. The litigation privilege is an absolute privilege against liability. It protects litigants, attorneys, judges and witnesses from being held liable for defamation for statements made in the course of a legal proceeding.

The fair reporting privilege is a qualified privilege. It protects fair and accurate reports on litigation, government affairs, or matters of public importance from liability. The report can be a summary; it does not have to be an exhaustive recitation of the facts. The key is that the report must be fair and accurate in its summarization of the matters being reported. Unlike an absolute privilege which cannot be overcome regardless of the speaker’s intent, a qualified privilege can be overcome by proving that the speaker made the statement with malice.

Knowing the common defenses and privileges to a defamation claim can be useful. But it takes the experience to know how and when to assert such a defense and what is required to successfully establish a defense to defamation liability. This is where a skilled defamation defense attorney can be invaluable.

Our Lake Forest, 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. You can view here a federal court decision where we prevailed in a libel per se claim asserting the innocent infringer defense. Here is an arbitration decision where we won a decision in favor our client after we presented evidence and cross-examined the used car dealer defendant at a hearing where we proved that our client’s 20 plus Youtube videos voicing his opinion that a used car dealer committed consumer fraud were true, were protected opinions under the First Amendment, or involved inconsequential and minor errors of fact. We recently required a defendant who publicized an allegedly false lawsuit regarding our client to provide an apology and full retraction as part of a confidential financial settlement following our filing of a $16 million suit for libel per se in federal district court. You can read about that case here.

Our Chicago Cybersquatting attorneys also represent and prosecute claims on behalf of businesses throughout the Chicago area including in Lincolnwood and Wheaton 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.

Super Lawyers named Chicago and Oak Brook business trial attorney Peter Lubin a Super Lawyer in the Categories of Class Action, Business Litigation, and Consumer Rights Litigation and Chicago slander attorney Patrick Austermuehle a Rising Star. Lubin Austermuehle’s Oak Brook and Chicago business trial lawyers have over thirty years of experience in litigating complex class action, consumer rights, and business and commercial litigation disputes. We handle emergency business lawsuits involving injunctions, and TROS, defamation, libel, and covenant not to compete, franchise, distributor and dealer wrongful termination and trade secret lawsuits and many different kinds of business disputes involving shareholders, partnerships, closely held businesses and employee breaches of fiduciary duty. We also assist businesses and business owners who are victims of fraud or defamatory attacks on their business and reputations.

Lubin Austermuehle’s DuPage County defamation and slander lawyers near Naperville and Hinsdale have more than three decades of experience helping business clients unravel the complexities of Illinois and out-of-state business laws. Our Chicago business, commercial, class-action, and consumer litigation lawyers represent individuals, family businesses and enterprises of all sizes in a variety of legal disputes, including disputes among partners and shareholders as well as lawsuits between businesses and consumer rights, auto fraud, and wage claim individual and class action cases. In every case, our goal is to resolve disputes as quickly and successfully as possible, helping business clients protect their investments and get back to business as usual. From offices in Oak Brook, near Skokie and Evanston, we serve clients throughout Illinois and the Midwest.