Defamation, Libel and Slander

Hotel Allegedly Tries to Penalize Bride for Negative Yelp Reviews of Wedding Venue Made by Wedding Guests But Claims Policy Was Only a Joke

October 12, 2014 | Peter S. Lubin and Patrick Austermuehle

Consumers have long relied on recommendations from friends and family before buying products and services, and businesses have risen and fallen like empires on this tradition of word of mouth. Then, the Internet brought about the ability to broadcast your opinion of a business to practically everyone in the world, and to see reviews by people you’ve never met. The potential benefits to businesses of this have to be weighed against the potential detriment when people post negative reviews. Generally, people are only motivated to leave a review if they had a very positive or very negative experience, leaving a skewed perspective of the business on the world wide web.

Some businesses have tried to fight back by including language in their terms of agreement which punishes customers for posting negative reviews online. While the legality of such a measure is in question, consumers all over the Internet have made their displeasure known.

Recently, the Union Street Guest House (USGH), a New York hotel, took it a step further by allegedly including a clause which punishes customers if another customer posts a negative review of the hotel anywhere on the internet. According to the hotel’s policy, “If you have booked the Inn for a wedding or other type of event anywhere in the region and given us a deposit of any kind for guests to stay at USGH there will be a $500 fine that will be deducted from your deposit for every negative review of USGH placed on any internet site by anyone in your party and/or attending your wedding or event. … If you stay here to attend a wedding anywhere in the area and leave us a negative review on any Internet site you agree to a $500 fine for each negative review.” The policy further noted that the $500 charge would be removed once a negative review was taken down, and that the policy only applied to wedding parties and events. Continue reading ›

Sixth Circuit Protects Rights of The Dirty.com to Republish Content Even if it is Libelous under Communications Decency Act

July 15, 2014 | Peter S. Lubin and Patrick Austermuehle

Although there are laws in place to prevent entities and citizens from harmful comments, such laws have to tread carefully to avoid stepping on the toes of the First Amendment to our constitution. The line got even thinner when the Internet was developed. Now people are free to broadcast their opinions all over the world with a relative amount of anonymity. The combination tends to make people freer about stating their thoughts, but if they’re not careful, those people might find themselves facing a lawsuit for defamation.

Sarah Jones, a former cheerleader for the Cincinnati Bengals, has also worked as a teacher at Dixie Heights High School in Edgewood, Kentucky. At the end of 2009, a user of TheDirty.com posted a photo on the website of Jones with a man and made offensive comments about Jones’s sex life, and the sex life of her partner. Jones repeatedly asked for the posts be removed, and Nik Richie, the owner of the website, refused. Jones responded by filing a lawsuit for defamation against the company that operates the gossip site, Dirty World, LLC, and Richie. The lawsuit alleged that the posts humiliated Jones, undermined her position as an educator, her membership in the Cincinnati Bengals cheerleader squad, and her personal life.

The content posted on TheDirty.com is never created by Richie, but submitted by third parties. Richie then reviews and publishes the submissions with his own comments. Richie and his attorney cited this as a basis for Richie’s immunity under the federal Communications Decency Act of 1996 (CDA). Continue reading ›

Lawyer Wins Defamation Lawsuit Regarding Negative Client On Line Review — Top Chicago Libel Slander and Defamation Attorneys Near Evanston and Glenview

May 23, 2014 | Peter S. Lubin and Patrick Austermuehle

Although many people feel that they may have a greater degree of freedom on the Internet due to its anonymous nature, virtually anything posted online can be traced back to the original IP address which was used to upload the content. That IP address can often be used to identify the individual who created the post.

A lawyer recently won a defamation lawsuit against a former client over this very issue. The attorney, Jan Hinson, alleged that her client, Vivek Pampattiwar, lied to her when she asked if a divorce action was pending. Pampattiwar allegedly said that his wife had not filed a counterclaim for divorce in his maintenance action in a separate county, despite the fact that he knew otherwise. Pampattiwar also allegedly failed to inform Hinson that she was the sixth attorney to represent him in the litigation with his wife.

Hinson allegedly checked an online docket to verify that no counterclaim had been filed before she filed a divorce action on behalf of Pampattiwar in Gwinnett County. The online docket, though, was incorrect. Pampattiwar had brought documents to the consultation with Hinson that allegedly showed that counterclaims had, in fact, been filed, but Hinson never read those documents. When Hinson discovered the counterclaims, she dismissed the divorce suit, but then she took over representation for Pampattiwar in another litigation after his lawyer withdrew from the case.

Pampattiwar allegedly resisted dismissing the divorce that Hinson had filed based on misinformation, indicated that he would pay more to have the case litigated in Gwinnett County, and took documents from her office to try to impede the dismissal of the divorce. Hinson later sought to withdraw from the representation and her motion was granted. However, Pampattiwar allegedly begged Hinson to represent him during arbitration until Hinson agreed. Then in October, Hinson allegedly contacted the law firm because he was upset about his legal bills. The complaint which Hinson filed against him alleges that Pampattiwar told a paralegal that Hinson and her staff were crooks.

The very next month, Hinson noticed a sudden significant drop in business. According to her complaint, the phones of her law office “stopped ringing”. Her staff discovered negative reviews of the law firm on Kudzu.com which called her “a CROOK Lawyer” and an “Extremely Fraudulent Lady”. The reviews were traced to an IP address which was associated with Pampattiwar.

During his testimony in the trial, Pampattiwar denied that he had failed to notify Hinson of the counterclaims in the divorce and denied posting the negative reviews of her law practice. The court ruled in Hinson’s favor, with a jury award of around $400,000, and Pampattiwar appealed the decision. In the appellate court, Pampattiwar argued that Hinson should not have relied exclusively on the online docket.

The appellate court upheld the lower court’s ruling. Reginald Greene, representing Pampattiwar in the defamation lawsuit, called the award “improper and excessive”.
Hinson has said that her screening process for taking on new clients has become more stringent as a result of her experiences with Pampattiwar.

Check Your Homeowner’s Insurance for Libel Coverage if You Are Sued for a Negative Internet Review or Comment

April 10, 2014 | Peter S. Lubin and Patrick Austermuehle

Although laws do exist to protect companies and individuals from harmful false statements, judges enforcing these laws must be careful not to violate the defendant’s right to free speech.

If a plaintiff believes that a defendant’s actions are causing harm, and must be stopped immediately, there are certain forms of emergency litigation which can be used to do this. When filing a complaint against a defendant, the plaintiff can also request that the court grant a preliminary injunction against the defendant’s harmful actions. This protects the plaintiff from any further harm the defendant might do in the months or even years that it can take for the court to reach a decision in the lawsuit. If the plaintiff is successful in proving that the defendant’s actions were harmful and illegal, the preliminary injunction may then become permanent. If, on the other hand, the defendant is successful in defending their case, then the preliminary injunction may be removed.

However, one situation in which courts are unlikely to grant a preliminary injunction is that of defamation. In Organization for a Better Austin v. Keefe, the Supreme Court ruled that it is unconstitutional for a court to issue a preliminary injunction to enjoin libelous statements.
This ruling is intended to protect individual consumers against large corporations that have a team of lawyers on their side. The corporation can act quickly to get a local judge to issue a preliminary injunction against the consumer before the defendant even has a chance to acquire her own counsel. Once that happens, the lawsuit is already going in favor of the plaintiff, even though it has just begun. The defendant is censored for the duration of the lawsuit, and any settlement negotiations which might take place do so in the context of the judge having issued a preliminary injunction against the defendant based on the likely outcome of the trial.
While the Supreme Court’s ruling applies to preliminary injunctions all over the country some states have laws which forbid even a permanent injunction to be issued against defamatory statements. In Missouri, for example, the local law points out that the state constitution makes such an injunction an impermissible prior restraint, although certain exceptions to this do exist.
In addition to state and federal laws protecting freedom of speech, some homeowner’s and renter’s policies include coverage which protects the homeowner or renter from accusations of libel. This turned out to be the case when Cooney posted a video on his YouTube page which made some statements about Jim Butler Chevrolet. Butler took these statements to be libelous and had his large law firm file a defamation lawsuit and petition a judge to issue a temporary restraining order against Cooney and his video. The judge complied before Cooney even had a chance to acquire his own attorney.

When he did manage to find legal representation, the lawyer advised Cooney to check his homeowner’s policy. Sure enough, it included libel coverage. They were able to get the judge to dissolve the temporary restraining order and to deny a preliminary injunction. Cooney was then able to restore his video to his YouTube page while the lawsuit progressed.

National Inquirer Quickly Settles Defamation Suit Brought By Friend of Philip Seymour Hoffman

April 3, 2014 | Peter S. Lubin and Patrick Austermuehle

The law recognizes that public figures are more likely to be the subject of defamatory statements than private citizens. This is especially true when a public figures dies suddenly and unexpectedly. Amid rumors surrounding the recent death of the actor, Philip Seymour Hoffman, was a report in the National Enquirer that he and the playwright, David Bar Katz, had been lovers.

Once the report came out, Katz said, “After I dropped the kids at school I looked at my phone, and I’ve gotten a million calls.” He also said that photographers were stalking him on the street. Although Katz said that he was tempted to ignore it, his friends urged him to file a libel lawsuit. Shortly after he did so, the Enquirer withdrew the article with an apology.
The report inaccurately quoted Katz as saying that he and Hoffman were lovers, that they had freebased cocaine the night of Hoffman’s death, and that Katz had seen Hoffman using cocaine many times.

It is well known that Katz and Hoffman were good friends. While they met through friends in the movie industry about fifteen years ago, they didn’t become close until later, when their children began attending the same school in Greenwich Village. They would often have breakfast together after the school drop-off. However, Katz insists that, although he and Hoffman discussed addiction, Hoffman never did drugs in front of him.

Mr. Burstein of the National Enquirer explained that the false report was an honest mistake. He said that his reporters “did a search and found someone named David Katz who appeared to be the son of David’s father. They asked, ‘Are you David Katz who is the playwright?'” He said that he was and they believed him. Burstein further explained that the man “sounded distraught. They couldn’t believe that someone would be so callous to say, ‘I’m the real David Katz'” when he wasn’t. Burstein said that the interview was conducted by a senior reporter who worked on the story with some researchers. The reporter was convinced that it was the right person.

The lawsuit was quickly settled, although Katz did not claim any money for himself. Instead, he formed the American Playwriting Foundation which will give out an annual prize of $45,000 for an unproduced play. It is to be called the Relentless Award. The foundation and the prize are both being paid for by the National Enquirer and its publisher, American Media Incorporated as a part of the settlement of the libel lawsuit. The exact amount of money that the Enquirer paid to settle the lawsuit has not been revealed, although Mr. Burstein did say that “It’s enough for the foundation to give out these grants for years to come.”

As part of the settlement, the Enquirer also provided Katz with contact details for the person who fooled them into thinking that he was David Katz. The real Katz has said that he intends to sue the man, although he hasn’t filed yet. He wants to be sure that he files the lawsuit against the correct person.

Dismissal of Scottie Pippen Libel and Slander Suit Affirmed by 7th Circuit

February 16, 2014 | Peter S. Lubin and Patrick Austermuehle

Many employers will not hire an employee if it is known that the employee has filed for bankruptcy or is suffering from debt. This can then harm the employee’s ability to make money in order to escape her debt.

This allegedly happened with the famous basketball player, Scottie Pippin. Since his retirement from playing basketball in 2004, Pippin has lost a large portion of his fortune through bad investments. As a result, he has filed multiple lawsuits against some of his former financial and legal advisors, whom he feels misled him. When the media heard of Pippin’s financial problems, several news organizations reported that the basketball star had filed for bankruptcy, which is not true.

Pippin then filed a lawsuit against some of these news organizations for defamation, alleging that the reports have had a negative impact on his ability to acquire product endorsements and personal appearances.

The Northern District of Illinois, in which the suit was initially filed, dismissed the case, stating that the complaint contained falsehoods which did not fit into any category of statements which are recognized by Illinois law as being so innately harmful that damages can be assumed.

Because Scottie Pippin is a public figure, he bears a heavier burden of proof in order to file a claim for defamation than a private citizen would. This is because public figures have greater access to the media through which they can refute defamatory statements. Private citizens are less likely to have the same level of access, thereby rendering defamation innately more harmful to a private citizen than to a public figure.

The court also found insufficient evidence that the statements had been published with actual malice, rather than ignorance. Because Pippin is a public figure, he needed to prove that the false statements were a product of actual malice in order to file claims. In order to qualify for actual malice, the defendant must have known that the statement was false and published it anyway. When a media outlet fails to confirm that a statement is false, a plaintiff might be able to sue them for negligence, but not actual malice. Although Pippin alerted the defendants to the falsity of their statements after publication, it was not enough to prove that actual malice existed at the time that the statement was published.

Additionally, cases of defamation in the state of Illinois are subject to the Single Publication Act, which provides that a claim for defamation is complete after the first publication. The Act was put in place to protect speakers and writers from facing multiple lawsuits regarding a single statement which was mass-produced.

Pippin argued that the Single Publication Act does not apply to material posted on the Internet. This, according to Pippin, is because those who publish on the Internet, as the defendants in this lawsuit did, can more easily post and delete material. Therefore, Pippin argued that every day that the defamatory material remains on the website after the publisher knows that it is false constitutes a republication of the material.

The Single Publication Act does not deal directly with statements published online, so the court was forced to infer from decisions made in similar cases in other courts. Based on these past decisions, the court ruled that the Single Publication Act does apply to material published on the Internet. As a result, the news organizations can only be held responsible for the first publication of the defamatory statement.

Supreme Court Rules That Reports to TSA Are Protected Speech Which Cannot Become the Subject of a Defamation Suit

February 12, 2014 | Peter S. Lubin and Patrick Austermuehle

While the law can protect citizens against defamation, there are limits to the kinds of statements which are considered defamatory. Generally speaking, a statement must be made publicly in order to be actionable under defamation law. Under most circumstances, any reports that an airline makes to the Transportation Security Administration (TSA) have immunity from defamation lawsuits. Despite this fact, William Hoeper, a former pilot for Air Wisconsin, filed a defamation lawsuit against the airline for making a report to the TSA which stated that they were concerned about his mental stability and that he may be armed.

The airline filed a report after Hoeper failed a final flight simulator test which he needed to pass in order to continue working for the airline. Hoeper admits that, upon his failure, he tossed his headset, exchanged words “at an elevated decible level”, and accused the instructor of creating an unrealistic test. As a pilot, Hoeper was authorized to carry a gun and airline officials worried that he would be able to bypass security while carrying a weapon.

Because it is in the public’s best interest for airlines to report suspicious behavior to the TSA, airlines are granted immunity from defamation lawsuits when filing these reports. Only if the airline makes these reports with reckless disregard for the truth can it be held accountable under relevant defamation law. The Colorado Supreme Court found that, in this instance, the airline did not have immunity and so it awarded Hoeper $1.2 million in damages.

The decision was appealed and the United States Supreme Court agreed to hear the case. The Supreme Court found that, because the airline’s report to the TSA was not materially false, the airline still had immunity regarding that report. The Court therefore reversed the ruling of the Colorado Supreme Court.

Justice Antonin Scalia wrote a dissenting opinion where he partially disagreed with the Court’s ruling. He argued that the case should have been remanded for further proceedings once it was determined that the material falsity standard was applicable in this case. He also argued that the award for damages could be justified given the report’s association of Hoeper’s conduct with mental illness.

Justice Sonia Sotomayor disagreed, arguing that fretting over word choice could delay reports of suspicious behavior to the TSA. Sotomayor also pointed out in her majority opinion that Hoeper “cannot dispute the literal truth of the airline’s report to the TSA, leaving him with no room to sue for defamation. She further wrote that the statement that the airline’s supervisors were concerned about Hoeper’s mental stability conveyed the gist of the situation.

Sotomayor took issue with Scalia’s assertion that Hoeper’s “display of anger” made him no more of a threat than “millions of perfectly harmless travelers.” Sotomayor argued that “Hoeper did not just lose his temper, he lost it in circumstances that he knew would lead to his firing, which he regarded as the culmination of a vendetta against him. And he was not just any passenger; he was [authorized to carry a firearm]”.

Libel Via Twitter Trial Ends With a Defense Win — Top Chicago Libel Attorney Near Oak Park and Evanston

February 7, 2014 | Peter S. Lubin and Patrick Austermuehle

In the world of defamation, there have long been two categories, which until recently, have covered all forms of defamation: slander, which includes any verbal defamation of a person or entity and; libel, which covers any defamatory comments made in writing. Now, with the growth of communicating over the internet, it appears that a new category of defamation is developing.

As courts continue to struggle to adapt the law to new and changing technology, a lawyer, Rhonda Holmes, has filed a defamation lawsuit against her former client, Courtney Love, for comments made on Twitter. Holmes was representing Love in a case Love wanted to bring regarding the estate of her late husband, Kurt Cobain. Love allegedly sent a Twitter message which claimed that Holmes had been “bought off” concerning the case.

Love’s current attorneys have argued that the language used on Twitter is hasty and opinionated, and as such, should not be treated the same as language used in a more formal setting. That argument though, appears not to hold much weight given Holmes’s recent testimony. In a sworn statement, Holmes said that Love agreed to settle the case for $600,000 and make a retraction of her defamatory statement. Love then allegedly failed to pay up and republished the offending comment.Barry Langberg, the attorney representing Holmes in the present lawsuit, claims that Love’s tweet was part of “a concerted effort … to destroy Ms. Holmes and her law firm.”
The lawsuit also includes subsequent critical statements that Love made in an online article about an unnamed female attorney. The court will consider whether Holmes’s reputation and business could have been affected by those comments.

John Lawrence, one of Love’s attorneys in the current lawsuit, says that, at the time that she made the defamatory comments on Twitter, Love believed that she had been abandoned by Holmes and her firm. However, Love’s beliefs at the time that she made the comment may not count if she later republished the comment.

Langberg claims that Holmes was devastated when Love fired her, but Love says she never fired her. Instead, Love did say, “in my mind I let her go”.

This is the first lawsuit in the United States to reach a trial court based on alleged defamation happening on Twitter. Poynter Institute has called it the first “Twibel” trial in the country. The decision that the court reaches in this case will have far-reaching consequences for similarly cases all over the country. The Los Angeles Superior Court rejected the assertion that comments made by Love on Twitter should be treated any differently than comments made in a more formal setting. If other courts make similar rulings in line with that of the Los Angeles Superior Court, it could change the way defamation cases are argued in our court system.
Since defamation is, by definition, comments made which are public and harmful, it makes sense that a court would not be lenient with a defendant who made defamatory comments on a social media site as public as Twitter.

After the Court’s ruling the case went to trial. After just four hours deliberating, the jury determined that Love had published the tweet, and that it was false. 11 of the jurors concluded the false statements would harm Holmes’s reputation. But the jury ruled 9-3 that Holmes’s lawyers had failed to prove that Love knew at the time that the statement was false, and so could not be found liable of defamation.

Although the jury did not award Holmes the $8 million she was claimed Love should pay as damages, Holmes’s attorney, Mitchell Langberg told Reuters that Holmes felt pleased her reputation restored. “What she’s really happy about is when the jury found that she didn’t get bought off, that she didn’t abandon her client for money.”

“Road Kill” Theory of Damages No Defense to Libel According to Kennedy Counsin Skakel — Evanston and Wheaton Libel Slander and Defamation Attorneys Near Chicago

January 25, 2014 | Peter S. Lubin and Patrick Austermuehle

When ruling in cases of alleged defamation, courts have a number of considerations to keep in mind. Whether or not the alleged defamation has any basis in truth is only the first consideration. Courts must also weigh factors such as whether the plaintiff is considered a public figure or a private citizen. Public figures are generally much more limited when filing a defamation lawsuit. This is because the law assumes that it is in the best interest of the public to be able to freely discuss public events, and such discussion often includes public figures. The law also assumed that, unlike private citizens, public figures have better access to the media, which they can use to address such rumors.

In addition to these considerations, courts must not forget to take into account the circumstances surrounding the defamation. For example, if the plaintiff has already been convicted of murder, is it safe to assume that a defamatory comment could not further damage that person’s reputation? This very question is at issue in a recent defamation lawsuit against Nancy Grace, a television personality. The defendant, Michael Skakel, was sentenced to 20 years to life for allegedly murdering his neighbor, Martha Moxley, when they were both fifteen years old.

In January 2012, Grace had a live broadcast program in which she asserted that Skakel’s DNA had been found in a tree near the victim. Skakel maintains that his DNA was never found at the scene and so he filed his defamation lawsuit against Grace, Beth Karas, a legal commentator who appeared on the program, and the producers of the program, Time Warner and Turner Broadcasting System.

The defendants argue that their statements cannot be considered defamation because they are “substantially true”. They point to statements that Skakel made to acquaintances and investigators that he had climbed a tree by Moxley’s home the night of the murder with the intention of masturbating. However, stating such an intention and claiming that a person’s DNA was found near a murder victim are two different things. According to Stephan Seeger, Skakel’s attorney, such as allegations “is not a minor misstatement”.

Stephan points out that “when you see the letters DNA and put that in any story and hang it around my defendant’s neck, the whole world believes that there is DNA evidence and that is lock, stock and done. … Anyone who is watching that show now forms the belief that the DNA was there”.

A Connecticut Superior judge, concluded that Skakel had ineffective counsel at his trial in 2002, and as a result, he overturned Skakel’s conviction. Another judge then released Skakel on $1.2 million bail, which his family provided. Skakel was released on the assurance that he would be returned to prison if a Connecticut appeals court reinstates the conviction. Far from being unable to do any more harm to Skakel, the defamation has the potential to influence the jurors who hear his case on appeal who will decide whether or not to reinstate his conviction.

Seeger points out that the defendants’ “roadkill theory of reputation” which assumes that their defamation cannot do any more harm to Skakel is false. He states that “Their position fails to acknowledge the Plaintiff’s reputational interest as germane to future parole applications, future trial prospects, and any and all other discretionary benefits that he may, as a matter of law or right, seek in prison or in our Courts.” Continue reading ›

Consumers Beware — Don’t Contract Away First Amendment Rights to Give Negative Reviews of Businesses

December 2, 2013 | Peter S. Lubin and Patrick Austermuehle

Our Chicago defamation, slander, libel, cyberbullying and First Amendment attorneys concentrate in this area of the law. We have defended or prosecuted a number of defamation and libel cases, including cases representing a consumer sued by a large luxury used car dealer in federal court for hundreds of negative internet reviews and videos which resulted in substantial media coverage of the suit; one of Loyola University’s largest contributors when the head basketball coach sued him for libel after he was fired; and 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. One of our partners also participated in representing a high profile athlete against a well-known radio shock jock.

Our Chicago defamation lawyers 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. Our Chicago Cybersquatting attorneys also represent and prosecute claims on behalf of businesses throughout the Chicago area including in Lake Forest and Vernon Hills, 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. Lubin Austermuehle’s Oak Brook and Chicago business trial lawyers have over a quarter of century of experience in litigating complex class action, consumer rights and business and commercial litigation disputes. We handle emergency business law suits 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.