Defamation, Libel and Slander

Substantial Truth is a Defense to a Libel or Defamation Claim in Illinois

May 11, 2023 | Peter S. Lubin and Patrick Austermuehle

A defamation claim should be dismissed under the “substantial truth” defense where the “gist” or “sting” of the allegedly defamatory material is true.” Harrison v. Chicago Sun-Times, Inc., 341 Ill.App.3d 555, 563 (1^st Dist. 2003) (reporter defendant’s use of the word “kidnapped” conveyed the gist or sting that would have been conveyed by the correct phrase “wrongful removal under federal and international child abduction law”). “Substantial truth” makes an allegedly defamatory statement non-actionable even when the statement is an inaccurate characterization of criminal behavior. That is so even when a statement is “not technically accurate in every detail.” Accord, Bertha v. Daily Herald Newspaper, 2022 IL App (2d) 210695, ¶ 20. See also Lemons v. Chronicle Pub. Co., 253 Ill.App.3d 888 (4^th Dist. 1993) (reporter’s words were substantially true because the reporter’s and plaintiff’s characterizations of the conduct were similar).

The substantial truth of a statement is normally a jury question, but where no reasonable jury could find that substantial truth had not been established, the question is one of law. Harrison, 341 Ill. App. 3d at 563.t Dist. 2003)

Harrison was a notable case in Illinois that involved a claim of defamation against a prominent newspaper, the Chicago Sun-Times. The case was decided by the Illinois Appellate Court in 2003 and had significant implications for media law in the state including reiterating the substantial truth defense.

The plaintiff in the case was Michael Harrison, a former employee of the Chicago Transit Authority (CTA) who had been fired from his job. The Sun-Times published a series of articles about Harrison’s termination, which included allegations of misconduct and corruption. Harrison sued the newspaper for defamation, arguing that the articles had damaged his reputation and caused him to suffer financial harm.

The trial court granted summary judgment in favor of the Sun-Times, finding that the newspaper’s statements about Harrison were either true or protected by the First Amendment’s guarantee of freedom of the press. Harrison appealed the decision to the Illinois Appellate Court, which affirmed the trial court’s ruling.

The Sun-Times argued that its articles about the plaintiff’s termination from the CTA were substantially true. The newspaper had conducted an extensive investigation into the circumstances of the termination, and had based its reporting on official documents and interviews with CTA officials. The articles accurately reported the substance of those documents and interviews, the newspaper argued, and any minor inaccuracies or omissions were not material to the overall story.

The Illinois Appellate Court agreed with the Sun-Times, finding that the articles were substantially true and therefore not defamatory. The court noted that the newspaper’s reporting was based on official documents and interviews with CTA officials, and that the articles accurately conveyed the substance of those sources. The court also found that the plaintiff had not shown that any inaccuracies or omissions in the reporting were material to the overall story or had altered its meaning.

The defense of substantial truth can be a powerful tool for defendants in defamation cases, particularly in cases involving public figures or matters of public interest. By demonstrating that a statement is substantially true, defendants can often avoid liability for allegedly defamatory statements even if they contain some minor inaccuracies or omissions.

Another one of the key issues in the case was whether the Sun-Times had acted with actual malice in publishing the allegedly defamatory statements about Harrison. Under U.S. defamation law, public figures like Harrison must prove that the defendant acted with actual malice – that is, with knowledge that the statements were false or with reckless disregard for their truth or falsity – in order to succeed in a defamation claim.

The Appellate Court in Harrison v. Chicago Sun-Times, Inc. found that there was no evidence that the newspaper had acted with actual malice. The court noted that the Sun-Times had conducted an extensive investigation into Harrison’s termination and had based its reporting on official documents and interviews with CTA officials. The court also found that the Sun-Times had accurately reported the content of those documents and interviews, and had not fabricated or distorted any facts.

The court’s decision in Harrison v. Chicago Sun-Times, Inc. reaffirmed the importance of the First Amendment’s protections for freedom of the press, particularly in cases involving public figures. It also highlighted the high standard of proof that public figures must meet in order to succeed in a defamation claim, emphasizing the need to prove actual malice on the part of the defendant and to defeat a substantial truth defense.

Harrison was a significant case in the evolution of media law in Illinois and the United States, underscoring the importance of a free and independent press in holding public officials accountable and informing the public.

Edelman Case Precludes Use of Litigation Privilege in Libel and Defamation Cases When Communications Have No Connection to the Lawsuit

May 10, 2023 | Peter S. Lubin and Patrick Austermuehle

The litigation privilege does not apply when a defamatory communication is made to people who have no legitimate “connection to the lawsuit.” Edelman, 338 Ill. App. 3d at 166. The Edelman rule applies whether or not a lawsuit has been filed, whether or not the complaint was shown to outsiders or its underlying allegations just discussed with them, and whether or not the complaint was a draft or filed version.

Nothing in Edelman supports holding that publication of a lawsuit in the court file immunizes the plaintiff in that case from libel claims if he publishes the lawsuit’s claims outside of the litigation.

The Edelman court made its findings based on facts about one attorney who had received a “draft or final” brief and another who had received a draft, all distributed after a bankruptcy trustee moved to reopen the bankruptcy estate. 338 Ill. App. 3d at 162. The court did consider an attorney’s receipt of a final, filed brief. But whether the briefs were in draft or final form was irrelevant to the holding that the allegedly defamatory communications made to two attorneys were not privileged. Id. at 166. Because neither attorney had a relationship to the litigation, the absolute privilege did not apply. Id. “Illinois has never extended the privilege to other persons without a connection to the lawsuit.” Id., citing, Kurzcaba v. Pollack, 318 Ill. App. 3d 686, 704 (1^st Dist. 2000), and Thompson v. Frank, 313 Ill. App. 3d 661, 664 (3^rd Dist. 2000).

Kurczaba did not reject he privilege only because the case involved an amended complaint not yet filed with leave of court. But, that court actually opined, “Assuming, arguendo, that defendant had a right to disseminate the Malus complaint with the ad, we nonetheless would find that the dissemination was also not protected by the attorney litigation privilege because the groups defendant disseminated the materials to extended beyond those covered by the privilege.” 318 Ill. App. 3d at 703. Continue reading ›

Reporter Says He Is Considering a Defamation Lawsuit Against Adam Schiff

February 20, 2023 | Peter S. Lubin and Patrick Austermuehle

While the internal documents Elon Musk dumped onto Twitter turned out not to have been the smoking gun on Hunter Biden that Republicans had been hoping for, it did contain some information on Representative Adam Schiff that might lead to legal action.

According to the documents, Schiff lobbied Twitter to get a journalist, Paul Sperry, banned from the social media site back in the fall of 2020 during the first impeachment of President Trump. Sperry is a senior reporter for RealClearInvestigations.com and a columnist for the New York Post. He told Fox News that he was targeted by Schiff for reporting on sources Democrats were relying on during the impeachment trial. Continue reading ›

Illinois Appellate Court Affirms Dismissal of Defamation Claims against Beverage Company Brought by Former Employee

February 5, 2023 | Peter S. Lubin and Patrick Austermuehle

An Illinois appellate court recently held that a former employee could not maintain his defamation claims against his former employer concerning statements about him allegedly made by certain executives and high-ranking employees of his former employer. The court found that the allegedly defamatory statements were protected by qualified privilege which the plaintiff had not presented evidence sufficient to overcome.

Plaintiff Michael Briggs was employed by SMG Food & Beverage, a company that provided food and catering service at McCormick Place. Briggs was employed by SMG as a banquet captain, and his duties entailed access to various parts of McCormick Place. He was still employed by SMG when he filed his claims against SMG.

Plaintiff alleged that on or about August 22, 2015, there was a meeting between management and union representatives during which Shaun Beard, a senior vice president of SMG managing its McCormick Place operations, allegedly stated, “We have to move the meeting because [plaintiff] is threatening the building because he is a terrorist.” Briggs also alleged that an SMG executive and SMG’s HR director allegedly repeated Beard’s remark and stated that plaintiff’s security pass for McCormick Place access “needed to be revoked.”

On November 15, 2018, Briggs filed his action alleging that defendants defamed him at the August 2015 meeting. The complaint alleged that the statement and the repetition of it were factually false and made knowing the statement was false or with reckless disregard for the truth. Briggs further alleged that the statements were defamatory per se as they accused him of being a criminal who would engage in criminal activity and impaired his “legitimacy as an employee of” SMG and his performance of his employment duties at McCormick Place.

Defendants filed a motion to dismiss the complaint as untimely, as it was filed in 2018 but alleged defamatory statements made in 2015. Briggs responded that his complaint was timely under the discovery rule as he could not have discovered the defamatory statements because they were made with the intent that they be kept confidential to prevent him from discovering them. He therefore argued that he did not learn of the statements until someone present at the meeting disclosed it to him in November 2017 and he did not learn of the repetition of the statements until March 2018. The trial court initially granted the defendants’ motion but the dismissal was reversed and remanded on appeal.

On remand, the defendants filed a motion for summary judgment where they argued that the complaint was untimely and that the alleged statement that plaintiff was a “terrorist” was non-actionable opinion. Additionally, they argued that qualified privilege protected the allegedly defamatory statements because they made them in their capacity as the plaintiff’s employer and this privilege could be overcome only if it was abused. The trial court granted defendants’ motion for summary judgment, finding that the plaintiff “failed to establish a genuine issue of material fact as to whether defendants’ alleged defamatory statements are protected by qualified privilege.” The trial court did not determine whether Beard’s alleged remark was opinion, finding it would be subject to qualified privilege even if it was defamatory. The plaintiff again appealed dismissal of his claims.

On appeal, the plaintiff argued that the trial court erred in granting summary judgment for defendants because there was a genuine issue of material fact as to whether their claimed qualified privilege was abused. The Court began its analysis by explaining that a defamatory statement is not actionable if the defendant can show it is (1) reasonably capable of an innocent construction, (2) an expression of opinion, or (3) subject to a privilege. The Court went on to explain that qualified privilege exists where a statement that may otherwise be considered defamatory is protected due to the circumstances or occasion of its making. “This privilege is based on the policy of protecting honest communications of misinformation in certain favored circumstances in order to facilitate the availability of correct information,” the Court noted. Under Illinois law, the Court noted that qualified privileges exist when an interest is “held by the person publishing the statement, the person to whom the matter is published, some other third person, or the public.”

While the general rule is a defamation plaintiff need only show that the defendant was negligent in making the allegedly defamatory statement, when a qualified privilege exists, the Court explained that a plaintiff must show the defendant abused the privilege, for instance by making the statements with actual malice. The Court agreed that Briggs failed to establish a genuine issue of material fact as to whether qualified privilege was abused. Continue reading ›

Plastic Surgeon Allegedly Used Deceptive Business Practices to Manipulate Reviews

February 1, 2023 | Peter S. Lubin and Patrick Austermuehle

Every business owner knows the importance of online reviews. You might love them or hate them, but there’s no denying that they have a very real effect on your business. One of the first things people look at when investigating a business online is the number and rating of the reviews the business has received.

Managing online reviews can be tricky for any business owner, but navigating businesses that seem legitimate when they’re really posting their own positive reviews is an equally treacherous minefield for customers. Continue reading ›

Illinois Appellate Court Revives Company’s Defamation suit against Competitor

December 25, 2022 | Peter S. Lubin and Patrick Austermuehle

The First District Illinois Appellate Court recently overturned a Cook County Circuit Court’s dismissal of a company’s defamation suit against a competitor. In its ruling, the Court held that a Chicago shipping company can claim it was defamed by emails sent to its management disparaging the company. Having cleared the hurdle of establishing a viable claim, the plaintiff company will now need to establish that it suffered reputational damage.

The allegations in this defamation suit stem from a series of anonymous emails sent in May 2019 to various board members and at least one executive of the plaintiff, project44, Inc. The complaint alleges that these emails purported to warn the project44 board members and executive of accounting fraud at project44 and connections to Chicago organized crime. Project44 allegedly was able to trace the email messages to computers used by a competitor, FourKites. Following receipt of the emails and its investigation into their source, project44 filed a commercial defamation suit against FourKites and several unknown FourKites employees.

In response, FourKites sought dismissal of the suit arguing that project44 could not sustain a defamation claim because project44 could not establish that the allegedly defamatory statements were published to any third parties. FourKites argued that no publication occurred because the emails were essentially sent to project44 itself and not to a third party. The trial court agreed with FourKites and dismissed the suit. Continue reading ›

Illinois Appellate Court Finds Defamation Suit Barred as Statements Protected by Privilege

November 15, 2022 | Peter S. Lubin and Patrick Austermuehle

An Illinois appeals court recently found a political candidate in Madison County could not be held liable for defamation for statements in a press release finding that the allegedly defamatory statements were privileged and thus immune from liability. Former Madison County IT director, Rob Dorman and former administrator Doug Hulme filed the lawsuit claiming that the press release statements were false and defamatory and ultimately cost them their jobs.

In April 2020, Robert Daiber, the Democrat candidate for county board chairman was identified as one of several local Democratic politicians calling for the dismissal of top officials in Madison county board chairman Kurt Prenzler’s administration. In the press release Daiber was quoted as saying “[a] criminal investigation by six law enforcement agencies has made it clear how extensive corruption and abuses of power are in the Prenzler administration. Madison County must act now to restore public trust by immediately dismissing the Prenzler aides who have committed these truly shocking actions.”

The press release also cited affidavits released from the investigation as providing “conclusive evidence that top aides . . . attempted a pay-for-play scheme by offering a county job to a congressional staff person in exchange for the appointment to a U.S. Attorney position of their political accomplice” and “a scheme to hack into and spy on e-mails of the Madison County judiciary and the offices of elected county officials (neither of which are under the jurisdiction of the County Chairman or County Board) for political purposes.”

Days after the publication of the press release Dorman and Hulme were fired from their positions with the county. Dorman filed suit against Daiber several months later and Hulme joined as a plaintiff shortly thereafter. In their complaint, the plaintiffs allege that the statements in the press release were false and defamatory and that they had been exonerated from any wrongdoing at the conclusion of the investigation and a subsequent probe by the Attorney General. Despite being exonerated, the plaintiffs alleged that the statements in the press release had caused them to lose their jobs. Continue reading ›

Seventh Circuit Finds in Favor of Newspaper in Defamation Suit over Article Detailing Trustee’s Breach of Fiduciary Duties

November 1, 2022 | Peter S. Lubin and Patrick Austermuehle

The Seventh Circuit federal appeals court recently determined that a Wisconsin newspaper did not commit defamation when it published a 2018 story concerning a local financial adviser. In affirming the district court’s finding in favor of the newspaper, the Seventh Circuit found that the allegedly defamatory article was largely accurate and protected under what is known under Wisconsin law as the judicial-action privilege, which protect publishers who report on court activity.

In August 2018, the Wausa Daily Herald published an article by reporter Sam Wisneski titled Wisconsin financial advisor accused of violating a dead man’s trust, mishandling $3 million. In the article Wisneski chronicled the allegedly bad-faith handling of the $3 million trust of deceased Wisconsin man Joe Geisler by his financial advisor, Thomas Batterman.

The story recounted the life of Geisler who, upon his death at the age of 88, left his more than $3 million estate to charity with detailed instructions to divide the money equally among four specific charities: the Superior Diocese of the Catholic Church, Bruce High School in northwestern Wisconsin, the Alzheimer’s Association and the American Cancer Society for local events.

A local wealth management firm, Vigil Asset Management, which was operated by Batterman, was made trustee and tasked with administrating the trust holding Geisler’s money. Batterman administered the trust but nearly a year after Geisler died, Batterman had allegedly only distributed $80,000 of the trust’s assets. This led the American Cancer Society to file suit in a Wisconsin state court to seek the removal of Vigil and Batterman as administrator of the trust.

The article detailed the judicial proceedings of the suit against Batterman and recounted the state court’s ultimate decision to remove Batterman and install a successor trustee, who disbursed the trust’s assets immediately. The article also mentioned how the court in that suit concluded that Batterman violated his fiduciary duties owed to the trust. The article went on to recount that the court ordered Batterman to pay the beneficiaries’ litigation expenses because his conduct “amounted to something of bad faith, fraud or deliberate dishonesty.”

Batterman initially demanded that the Daily Herald retract the article. Instead, the newspaper updated the article the following month by including a new paragraph clarifying that “[a]lthough a judge later found that Batterman had not committed fraud, theft or embezzlement, he ruled that the financial adviser had engaged in multiple acts of ‘bad faith’ and ordered him to be removed from handling the Geisler trust and to pay part of the charities’ legal fees.” The updated article also added the modifier “criminal” before the noun “wrongdoing” so that the sentence read: “Neither Batterman nor Richards has been charged with any criminal wrongdoing in the Geisler case.”

In October 2019, Batterman sued the Daily Herald alleging that the 2018 article was defamatory. The paper moved to dismiss the complaint for failure to state a claim. The District Court judge dismissed the majority of the case after finding that the article was substantially true and would not imply any new criminal misconduct on Batterman’s part to an ordinary reader. The paper then moved for summary judgment on the surviving claim of defamation that had not been dismissed. The District Court granted summary judgment finding that the paper had established that the article’s portrayal of Batterman as a bad faith financial actor was true, and, thus, by definition could not be defamatory. Batterman appealed. Continue reading ›

Court Rules that HOA Manager’s Defamation Claims Barred by Qualified Privilege

July 6, 2022 | Peter S. Lubin and Patrick Austermuehle

An Illinois Appellate Court recently affirmed a ruling dismissing the defamation claims filed by a manager of a homeowners association stemming from comments made about him during a meeting of the HOA. The Court ruled that the manager could not maintain his claims because the allegedly defamatory comments were protected from liability by qualified privilege.

The plaintiff in the case, Philip Kiss, managed the HOA from 2010 to 2016 and also served as its attorney during this time. The board relieved Kiss of his duties in 2016. In November 2017, one of the board members, Ellen Sheldon, stated during a meeting of the HOA, “I don’t want a person who comes to a homeowners meeting drunk managing our … association and he came drunk in 2015.” In response to a question asking how she knew Kiss was drunk, Sheldon said, “because he stood right at my face and he breathed at my face which was unbelievable[.] I wanted to pass out. And he could not speak clearly. [T]he man did not belong managing us[.] [T]hank God he’s not anymore.”

Kiss sued both the HOA and Sheldon alleging defamation and false light invasion of privacy. The defendants moved to dismiss the complaint arguing, in part, that the statements were protected by qualified privilege because they were made during a board meeting of the HOA. After several amendments to Kiss’s complaint, defendants again sought to dismiss the claims based on qualified privilege. The trial court granted the defendants’ motion and dismissed the claims with prejudice. Kiss appealed arguing that the trial court improperly dismissed his claims and refused to allow him to re-plead his claims for a fifth time. Continue reading ›

What the Depp v. Heard Trial Has Taught Us about Defamation Law

May 31, 2022 | Peter S. Lubin and Patrick Austermuehle

For nearly six weeks, many have followed the defamation trial between Johnny Depp and his former wife Amber Heard. The trial has provided potent insight into the destructive effects of drugs, alcohol, and stardom. It has also highlighted the perhaps more relatable lesson that ending a marriage can be a messy process. Emotions run high, tempers flare, and deep wounds can lead former spouses to lash out. Sometimes these outbursts result in saying things that are hurtful or even defamatory. Such is the basis of the case of Depp and Heard.

The dispute between Depp and Heard stems from a December 2018 opinion column by Heard printed in The Washington Post. In the column, Heard described herself as a victim of domestic violence. While the column did not name Depp directly, Depp has argued that it included enough detail and time references to allow readers to deduce that she was talking about Depp, to whom she was married briefly from 2015-2016. For instance, the 2018 column stated “two years ago, I became a public figure representing domestic abuse, and I felt the full force of our culture’s wrath for women who speak out.” Readers were quick to connect the dots recalling that she had first raised allegations of abuse during her and Depp’s 2016 divorce proceedings. These allegations were also reported in a London tabloid that Depp sued unsuccessfully in 2020 for labeling him a “wife-beater.”

Depp responded to the op-ed by suing Heard for $50 million. She responded by countersuing Depp for $100 million in damages. The seven-person jury in the case is considering Heard’s countersuit alongside Depp’s original claim.

One lesson about defamation law can be learned from considering where the suit was filed. Depp filed suit in the in Fairfax County Circuit Court in Virginia, though neither he nor Heard live or work in Virginia. Both reside, at least part time in California, but neither chose to file their claims in a California court. Why? There are at least two reasons. Continue reading ›