Chicago Business Litigation Lawyer Blog
You wrote an honest review, warned a neighbor about a contractor, or
posted your side of a dispute, and now a demand letter or a summons says
you defamed someone. The lawsuit is frightening, and it is often meant
to be. The person suing may want to silence you as much as to win.
Before you panic, delete the post, or apologize your way into an
admission, understand two things. Illinois gives a defamation defendant
strong defenses, and in many cases an insurance policy you already pay
for will hire the lawyer who raises them.
This is a plain guide to the defenses that protect someone sued over
a review, a social media post, or a complaint, and to the coverage most
people never think to check.
Can I be sued for a bad Yelp or Google review in Illinois?
Anyone can be sued. The real question is whether the claim can
survive, and Illinois law gives you several ways to defeat it. A
defamation plaintiff has to prove that you made a false statement of
fact, that you published it without privilege, and that it caused harm.
Each of those elements is a place the case can fail, and an honest
review of a real experience rarely satisfies all of them.
Is my honest opinion protected, or can a review still be defamation?
Opinion is protected, but the label is not magic. In Milkovich v.
Lorain Journal Co., the United States Supreme Court held that calling a
statement an opinion does not shield it if it implies a provably false
fact. The flip side favors you. A statement that cannot be proven true
or false, or that a reader would understand as rhetoric rather than a
factual charge, is not actionable. In Imperial Apparel, Ltd. v. Cosmo’s
Designer Direct, Inc., a menswear store ran an over-the-top ad taunting
a rival, warning readers to beware cheap imitators and threatening a
hail storm of frozen matzo balls; the Illinois Supreme Court read it as
rhetorical hyperbole rather than a statement of fact and held it
non-actionable. Solaia Technology, LLC v. Specialty Publishing
Co. applies the test Illinois uses, weighing whether a statement has a
precise, verifiable meaning and how a reader would understand it in
context. Words like “overpriced,” “rude,” or “the worst experience I
have had” read as opinion.
What is the innocent construction rule, and how does it help me?
Illinois gives defendants a doctrine that other states do not. Under
the innocent construction rule, restated in Chapski v. Copley Press,
Inc. and refined in Bryson v. News America Publications, Inc., a
statement that is reasonably capable of an innocent, non-defamatory
meaning is not actionable as defamation per se. If your words can fairly
be read in a way that does not defame, the per se claim fails, and the
plaintiff loses the benefit of presumed damages.
Is truth a defense?
Truth is a complete defense, and it does not have to be perfect.
Illinois recognizes substantial truth, which means a statement is not
actionable if its gist or sting is true even if a detail is off. If the
core of what you said is accurate, the plaintiff cannot turn a minor
inaccuracy into a defamation judgment.
How long does someone have to sue me?
One year. Under 735 ILCS 5/13-201, a defamation action must be filed
within one year after it accrues. A suit filed after that year is
time-barred, and the date of the original post usually starts the clock.
Check the timeline first, because it can end the case outright.
Does Illinois’ anti-SLAPP law protect my online post?
Be careful here, because this defense is narrower than the internet
suggests. The Illinois Citizen Participation Act, 735 ILCS 110, protects
acts in furtherance of the rights to petition, speak, and participate in
government, and it immunizes those acts unless they are “not genuinely
aimed at procuring favorable government action.” In Sandholm v. Kuecker,
the Illinois Supreme Court held that the Act does not reach an ordinary
defamation suit and protects only speech genuinely aimed at prompting
government action. A Yelp review or a private business complaint usually
falls outside it. The Act can be a powerful tool when your speech was a
petition to a public body, a report to the police, or advocacy on a
zoning or licensing matter, and it is a weak fit for a consumer review.
Do not build your defense on it without that government connection.
I only shared or reposted someone else’s statement. Am I liable?
Federal law may protect you. Section 230 of the Communications
Decency Act, 47 U.S.C. 230, provides that “[n]o provider or user of an
interactive computer service shall be treated as the publisher or
speaker of any information provided by another information content
provider.” The immunity is broad. In Zeran v. America Online, Inc.,
anonymous posts advertised offensive T-shirts and listed a real man’s
home phone number, leaving him with an abusive call about every two
minutes, and the court held that the online service could not be treated
as the publisher of what a stranger had posted. Section 230 protects you
for hosting or passing along content that someone else created, though
it does not protect your own original false statements.
Will my homeowners or umbrella insurance cover a defamation lawsuit?
This is way to protect yourself many people and even some lawyers miss. Many homeowners
and umbrella policies include personal injury coverage that reaches the oral or
written publication of material that libels or slanders a person. When
it applies, that coverage triggers the insurer’s duty to defend, which
means the insurance company pays for your lawyer and often for any
covered settlement. Read your policy, and read your umbrella policy, and
watch for exclusions for business activities and for statements made
with knowledge of their falsity. In our experience, a homeowner sued
over a post is often entitled to an insurer-funded defense and never
realizes it.
What should you do if you are threatened or served?
Protect yourself before you react. Do not delete the post, because
destroying evidence can hurt you far more than the post itself. Preserve
everything, including the original statement and its context. Do not
double down or keep arguing online, because new statements can add new
claims. Notify your homeowners and umbrella insurers promptly and ask
them to defend you. Then talk to counsel, and do it early, because the
one-year clock and the insurance-notice deadlines both reward speed.
A defamation suit over a review or a post is often weaker than the
demand letter makes it sound. Illinois law gives you real defenses, and
the right insurance policy can put a lawyer in your corner at no cost to
you.
Big-firm firepower, with the partners on your case
Peter S. Lubin and James V. DiTommaso are Chicago business litigation
lawyers who try cases throughout Illinois. Peter is a University of
Chicago Law School graduate who has taught trial practice there for
decades and is an Illinois Super Lawyer. He has served as lead counsel
in more than one hundred class actions and has handled more than one
hundred shareholder, LLC, derivative, breach of fiduciary duty, and
fraud matters on both the plaintiff and the defense side. Crain’s
Chicago Business credited him with the largest class action settlement
of its year, a forty million dollar recovery. The firm has been named
DuPage County Law Firm of the Year, and its lawyers have represented
companies including McDonald’s, Motorola, and Experian and have
litigated against adversaries including AT&T and General Motors.
James DiTommaso is a Chicago-Kent College of Law graduate with a
certificate in business law who served with the Illinois Appellate Court
and argued a case before the Illinois Supreme Court. When you hire this
firm, the lawyers whose names are on the door handle your case.
If you have been threatened or sued over a review, a post, or a
statement, do not answer it alone, and check your insurance before you
do anything else. Call DiTommaso Lubin, P.C. at 630-333-0333 for a free
consultation, or contact us
online.