Newspaper Not Liable for Police Report Mistake Under Fair Report Privilege


Our Illinois defamation attorneys and Chicago business law lawyers were interested to see a recent Second District Court of Appeal case affirming the fair-report privilege for newspapers accused of defamation. That was one cause of action in Eubanks v. Northwest Herald Newspapers, No. 2-08-0812 (Ill. 2nd 2010), in which plaintiff Carolene Eubanks also alleged false light invasion of privacy. Eubanks was upset at the Northwest Herald for printing a police notice that she had been arrested for retail theft and attempted obstruction of justice. In fact, another woman was arrested; the police had made a mistake in their original report. Unfortunately, the mistake was caught too late and the report went to print. The newspaper printed a retraction the next day explaining that Eubanks was not the person arrested.

Nonetheless, Eubanks filed a lawsuit against Northwest Herald Newspapers about five months later, alleging defamation and false light invasion of privacy. The newspaper moved for summary judgment, asserting that it was immune from defamation lawsuits under the fair report privilege. That privilege shields the media from lawsuits as long as they use official records or reports — including police reports — and fairly and accurately report that official information. The motion included an affidavit from the newspaper employee who received the original, incorrect police report via email, Brenda Schory, as well as the follow-up report correcting it. Because the matter took place on a New Year’s holiday weekend, Schory said, she didn’t open the second email until the incorrect report had already been published.

The trial court denied this motion for summary judgment, saying it provided no evidence of whether another employee might have opened the email before Schory could. In response, the newspaper made another motion for summary judgment, this time including an affidavit from the employee that maintains its computer system, Ben Shaw. Shaw said he had looked through computer records and was able to prove that no employee opened the second email until late in the morning the incorrect story had been published. The trial court granted summary judgment this time. Eubanks appealed, arguing that the fair report privilege does not apply to the article at issue, and that a jury should decide whether it recklessly abused the privilege.

The Second District first addressed the issue of whether the fair-report privilege applied at all. Illinois law says the privilege applies if the report is “accurate and complete or a fair abridgement” of the official information. Eubanks argued that the Northwest Herald article was not fair and complete because it did not contain the information from the second email. The Second disagreed. Relying on caselaw including Gist v. Macon County Sheriff’s Department, 284 Ill. App. 3d 367, 376 (1996), the court noted that the law asks only whether the publication was accurate, not whether the information contained in it is actually true. The newspaper had no obligation to report the contents of the second email until it opened that email, the court said. Thus, the privilege still applies.

Next, the court tackled the argument from Eubanks that summary judgment was inappropriate because a reasonable juror could find that the newspaper abused its privilege by acting recklessly. To support this, Eubanks argued that the newspaper could have covered police reports or checked email over the holiday weekend. In any case, she argued that this is inappropriate for summary judgment and a jury should decide. The Second dismissed this argument as well. Most qualified privileges in Illinois can be overcome if the plaintiff can show malice, the court said. But under Solaia Technology, LLC v. Specialty Publishing Co., 221 Ill. 2d 558, 588 (2006), not even malice overcomes the fair-report privilege. That decision said the privilege can be abused only if the defendant’s report was inaccurate, for example, by omitting information or adding incorrect information. For that reason, there was no abuse of the privilege in this case, and summary judgment was appropriate.

Lubin Austermuehle handles cases of defamation, libel and slander, both of individuals and of businesses and their products. Our Chicago slander attorneys represent both plaintiffs and defendants in these cases. Defamation, slander and libel are often emotionally fraught, but they can also create serious financial and business problems for people, companies and products that are falsely smeared. Victims can suffer socially, but they may also lose business and hard-won business reputations because of indifference to the truth or unfair competition. Our Highland Park libel attorneys understand Illinois law on these matters, and we understand all of the most common defenses and privileges, so you can be sure your case is in good hands. If you have a case regarding personal or business libel, slander or defamation, we can help. To set up a free consultation, call us toll-free at 1-866-990-4990 or contact us through the internet today.

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