922 N.E.2d 1196
397 Ill.App.3d 746, 922 N.E.2d 1196, 337 Ill.Dec. 619, 38 Media L. Rep. 1413
(Cite as: 397 Ill.App.3d 746, 922 N.E.2d 1196, 337 Ill.Dec. 619)
Appellate Court of Illinois,
Second District.
Carolene A. EUBANKS, Plaintiff–Appellant,
v.
NORTHWEST HERALD NEWSPAPERS, d/b/a
Northwest Herald, an Entity of an Unknown Nature, f/k/a
Northwest Herald, Inc., Defendant–Appellee.
No. 2–08–0812.
Jan. 22, 2010.
Background: Individual who local newspaper inaccurately reported had been charged with retail theft and attempted obstruction of justice brought defamation and
false light invasion of privacy action against newspaper.
The Circuit Court, McHenry County, Maureen P. McIntyre, J., awarded summary judgment to newspaper. Individual appealed.
Holdings: The Appellate Court, Schostok, J., held that:
(1) article was a complete and accurate summary of an
e-mail received from local police department, and
(2) newspaper did not abuse the fair report privilege.
Affirmed.
West Headnotes
[1] Libel and Slander 237
42(.5)
237 Libel and Slander
237II Privileged Communications, and Malice Therein
237k40 Qualified Privilege
237k42 Reports
237k42(.5) k. In general. Most Cited Cases
Page 1
The fair report privilege has two requirements: (1) the
report must be of an official proceeding, and (2) the report
must be complete and accurate or a fair abridgement of the
official proceeding. Restatement (Second) of Torts § 611.
[2] Libel and Slander 237
42(.5)
237 Libel and Slander
237II Privileged Communications, and Malice Therein
237k40 Qualified Privilege
237k42 Reports
237k42(.5) k. In general. Most Cited Cases
The fair report privilege is a qualified privilege. Restatement (Second) of Torts § 611.
[3] Libel and Slander 237
42(.5)
237 Libel and Slander
237II Privileged Communications, and Malice Therein
237k40 Qualified Privilege
237k42 Reports
237k42(.5) k. In general. Most Cited Cases
For a publication to be considered a fair abridgment of
an official proceeding, so as to be protected by the fair
report privilege, the report must convey to readers a substantially correct account of the official proceedings. Restatement (Second) of Torts § 611.
[4] Libel and Slander 237
42(.5)
237 Libel and Slander
237II Privileged Communications, and Malice Therein
237k40 Qualified Privilege
237k42 Reports
237k42(.5) k. In general. Most Cited Cases
© 2013 Thomson Reuters. No Claim to Orig. US Gov. Works.
922 N.E.2d 1196
397 Ill.App.3d 746, 922 N.E.2d 1196, 337 Ill.Dec. 619, 38 Media L. Rep. 1413
(Cite as: 397 Ill.App.3d 746, 922 N.E.2d 1196, 337 Ill.Dec. 619)
Under the fair report privilege, a reporter is not privileged to make additions of his own that would convey a
defamatory impression or to indict expressly or by innuendo the veracity or integrity of any of the parties. Restatement (Second) of Torts § 611.
[5] Libel and Slander 237
42(.5)
237 Libel and Slander
237II Privileged Communications, and Malice Therein
237k40 Qualified Privilege
237k42 Reports
237k42(.5) k. In general. Most Cited Cases
It is the accuracy of the summary, not the truth or falsity of the information being summarized, that is the
benchmark of the fair report privilege. Restatement (Second) of Torts § 611.
[6] Libel and Slander 237
34
237 Libel and Slander
237II Privileged Communications, and Malice Therein
237k34 k. Nature and grounds of privilege in general. Most Cited Cases
Libel and Slander 237
123(8)
237 Libel and Slander
237IV Actions
237IV(E) Trial, Judgment, and Review
237k123 Questions for Jury
237k123(8) k. Privilege. Most Cited Cases
A defamatory statement is not actionable if it is privileged; this is a question of law.
[7] Libel and Slander 237
237 Libel and Slander
42(2)
Page 2
237II Privileged Communications, and Malice Therein
237k40 Qualified Privilege
237k42 Reports
237k42(2) k. Executive and legislative proceedings and investigations. Most Cited Cases
Article published in local newspaper, which inaccurately stated that individual had been charged with retail
theft and attempted obstruction of justice, was a complete
and accurate summary of an e-mail received from local
police department, and thus fair report privilege protected
newspaper from liability to individual for defamation, even
though police department later sent a second e-mail correcting the identity of the alleged perpetrator; newspaper
did not make any omissions or additions to its publication
that would give any false impression, and nobody at
newspaper saw second e-mail before article was published.
Restatement (Second) of Torts § 611.
[8] Libel and Slander 237
50.5
237 Libel and Slander
237II Privileged Communications, and Malice Therein
237k50.5 k. Exceeding privilege or right. Most
Cited Cases
Once a qualified privilege is established, a communication is actionable only if the plaintiff can show that the
defendant abused the privilege.
[9] Libel and Slander 237
51(1)
237 Libel and Slander
237II Privileged Communications, and Malice Therein
237k51 Existence and Effect of Malice
237k51(1) k. In general. Most Cited Cases
Generally, a plaintiff can establish abuse of a qualified
privilege by showing “actual malice”; malice is shown
when the defendant knew the information it published to
be false or acted in reckless disregard of the truth or falsity
of the information.
© 2013 Thomson Reuters. No Claim to Orig. US Gov. Works.
922 N.E.2d 1196
397 Ill.App.3d 746, 922 N.E.2d 1196, 337 Ill.Dec. 619, 38 Media L. Rep. 1413
(Cite as: 397 Ill.App.3d 746, 922 N.E.2d 1196, 337 Ill.Dec. 619)
[10] Libel and Slander 237
50.5
237 Libel and Slander
237II Privileged Communications, and Malice Therein
237k50.5 k. Exceeding privilege or right. Most
Cited Cases
Newspaper that published information contained in an
e-mail from local police department that inaccurately
stated that individual had been charged with retail theft and
attempted obstruction of justice did not abuse the fair report privilege, despite contention that newspaper should
have checked its e-mail over a holiday weekend so as to
discover a second e-mail from police department correcting the identity of the alleged perpetrator; publication was
an accurate summary of the first e-mail, and newspaper did
not in fact see the second e-mail until after the report was
published. Restatement (Second) of Torts § 611.
**1197 Jeannie M. Ridings, Kililis, Ridings & Vonau,
P.C., Crystal Lake, for Carolene A. Bubanks.
Donald M. Craven, Esther J. Seitz, Donald M. Craven,
P.C., Springfield, for Northwest Herald Newspapers.
“L06—14615
**1198 Justice SCHOSTOK delivered the opinion of the
court:
***621 *747 On June 15, 2007, the plaintiff, Carolene
Eubanks, filed a complaint against the defendant, Northwest Herald Newspapers, alleging defamation and false
light invasion of privacy based on a short article indicating
that she had been arrested and charged with retail theft and
obstruction of justice. The defendant filed a motion for
summary judgment, arguing that the publication could not
be held defamatory under the fair-report privilege. On
August 20, 2008, the trial court granted the defendant's
motion for summary judgment. The plaintiff appeals from
that order. On appeal, the plaintiff argues that the
fair-report privilege should not apply because the subject
publication was not “accurate and complete” and that a
question of fact was raised as to whether the defendant
abused or forfeited that privilege. We affirm.
The record reveals that on Friday, December 29, 2006,
the defendant received an e-mail from the Lake in the Hills
police department at 2:08 a.m. The e-mail was a Lake in
the Hills police department “Daily Bulletin” dated December 28, 2006. The document stated, in relevant part, as
follows:
1610 HRS 101 N RANDALL RD (DOMINICKS)
RETAIL THEFT
EUBANKS, CAROLENE A
F/W 49 YOA
OFC LATHROP
25 PERSHING AVE
LAKE IN THE HILLS, IL
(NS)
Page 3
CHARGES: RETAIL THEFT UNDER, ATTEMPT TO OBSTRUCT JUSTICE. SUBJECT
BONDED.”
Hills, was charged Thursday, Dec. 28, with retail theft
and attempted obstruction of justice.”
It is standard practice for the defendant to receive
e-mails from local police agencies about recent criminal
arrests and to publish that information in its newspaper. On
this occasion, the December 29 e-mail was opened and
read by an employee for the defendant, Brenda Schory, at
1:14 p.m. Based on this e-mail, Schory prepared the following article:
*748 Schory then placed the article in line for publication in the upcoming issue of the newspaper. The article
was eventually printed before 6 a.m. on January 2, 2007,
and appeared in the defendant's newspaper on the same
date.
“Carolene A. Eubanks, 49, 25 Pershing Ave., Lake in the
The Lake in the Hills police department had also sent a
© 2013 Thomson Reuters. No Claim to Orig. US Gov. Works.
922 N.E.2d 1196
397 Ill.App.3d 746, 922 N.E.2d 1196, 337 Ill.Dec. 619, 38 Media L. Rep. 1413
(Cite as: 397 Ill.App.3d 746, 922 N.E.2d 1196, 337 Ill.Dec. 619)
second e-mail on December 29, 2006, at 10:25 p.m. The
second e-mail contained the following:
“Please remove the identifiers of ‘Eubanks, Carolene A.
F/W 49 YOA, 25 Pershing Ave., Lake in the Hills, IL’
from the arrest for Retail Theft on 122806 and replace
with Bradshaw, Barbara J. F/W 44 YOA, 73 N. Geneva
St. Elgin, IL.”
Unfortunately, Schory and the defendant's other employees left the office before the second e-mail was sent. In
addition, the weekend of December 30, 31, and January 1
was a holiday weekend and no employees were at the
defendant's office during that period. Pursuant to an affidavit filed by the defendant, the first time the second
e-mail was read was on January 2, 2007, at 10:17 a.m.
Thus, the January 2, 2007, edition of the defendant's
newspaper, printed before 6 a.m. on that date, published
the article indicating that the plaintiff had been arrested
and charged with theft and attempted obstruction of justice. The defendant published a retraction of the article in
its January 3, 2007, newspaper, stating that the plaintiff
was not the one charged with those crimes.
**1199 ***622 On June 15, 2007, the plaintiff filed
her complaint for defamation and false light invasion of
privacy based on the January 2, 2007, publication. The
defendant filed a motion for summary judgment on November 29, 2007, asserting that it was immune from the
plaintiff's claims under the fair-report privilege. Attached
to the defendant's motion was the affidavit of Schory. The
affidavit revealed that Schory was an employee of the
defendant and that it was her job to check e-mails received
from police agencies; however, she was under no obligation to check over the holiday weekend. Schory averred
that she had not been able to open the second e-mail until
after the false information about the plaintiff had already
been published.
On May 12, 2008, the trial court denied the defendant's motion for summary judgment. The trial court reasoned that there was no evidence of whether any other
Page 4
employee of the defendant opened and read the second
e-mail before the defamatory article was published. On
June 23, 2008, the defendant renewed its motion for
summary judgment, attaching an affidavit of Ben Shaw.
This affidavit indicated that Shaw was the defendant's
employee responsible for maintaining the defendant's
computer system. Shaw reviewed the defendant's computer records and researched the history of e-mails the
defendant *749 received from the Lake in the Hills police
department. According to Shaw, the records proved that no
employee of the defendant had opened Lake in the Hills'
second e-mail before 10:17 a.m. on January 2, 2007. On
August 20, 2008, the trial court granted the defendant's
renewed motion for summary judgment because “ there
[was] no issue of fact that the supplemental police report
was not opened or read by anyone at the newspaper until
after publication of the article at issue.”
Summary judgment is appropriate where the pleadings, depositions, and admissions, together with the affidavits, show that there is no genuine issue of material fact
and that the moving party is entitled to judgment as a
matter of law. Parker v. House O'Lite Corp., 324
Ill.App.3d 1014, 1019, 258 Ill.Dec. 304, 756 N.E.2d 286
(2001). The court must construe the evidence strictly
against the movant and liberally in favor of the nonmoving
party. Maple Lanes, Inc. v. News Media Corp., 322
Ill.App.3d 842, 844, 256 Ill.Dec. 124, 751 N.E.2d 177
(2001). We review de novo a trial court's ruling on a motion for summary judgment. Vickers v. Abbott Laboratories, 308 Ill.App.3d 393, 399, 241 Ill.Dec. 698, 719 N.E.2d
1101 (1999).
On appeal, the plaintiff first contends that the trial
court erred in applying the fair-report privilege to the
newspaper article at issue. Section 611 of the Restatement
(Second) of Torts defines the fair-report privilege as follows:
“The publication of defamatory matter concerning
another in a report of an official action or proceeding * *
* is privileged if the report is accurate and complete or a
fair abridgement of the occurrence reported.” Restate-
© 2013 Thomson Reuters. No Claim to Orig. US Gov. Works.
922 N.E.2d 1196
397 Ill.App.3d 746, 922 N.E.2d 1196, 337 Ill.Dec. 619, 38 Media L. Rep. 1413
(Cite as: 397 Ill.App.3d 746, 922 N.E.2d 1196, 337 Ill.Dec. 619)
ment (Second) of Torts § 611, at 297 (1977).
This section was adopted by the Illinois Supreme
Court in Catalano v. Pechous, 83 Ill.2d 146, 167–68, 50
Ill.Dec. 242, 419 N.E.2d 350 (1980). The plaintiff argues
that the defendant's publication was not an “accurate and
complete” report from the Lake in the Hills police department because the defendant received two e-mails and
published information from only the first one.
[1][2][3][4][5][6] “[T]he fair report privilege has two
requirements: (1) the report must be of an official proceeding; and (2) the report must be complete and accurate
or a fair abridgement of the official proceeding.”
***623**1200Solaia Technology, LLC v. Specialty Publishing Co., 221 Ill.2d 558, 588, 304 Ill.Dec. 369, 852
N.E.2d 825 (2006). The fair-report privilege is a qualified
privilege and courts have consistently held that news reports based on the records and utterances of police and
other law enforcement officers are the types of official
proceedings protected by this privilege. Maple Lanes, 322
Ill.App.3d at 844, 256 Ill.Dec. 124, 751 N.E.2d 177; Gawel
v. Chicago American Publishing Co., 1 Ill.App.3d 481,
483, 274 N.E.2d 628 (1971). For a publication to be considered a fair abridgment,*750 the report must convey to
readers a substantially correct account of the official proceedings. Solaia Technology, 221 Ill.2d at 590, 304
Ill.Dec. 369, 852 N.E.2d 825. A reporter is not privileged
to make additions of his own that would convey a defamatory impression or to indict expressly or by innuendo the
veracity or integrity of any of the parties. Solaia Technology, 221 Ill.2d at 590, 304 Ill.Dec. 369, 852 N.E.2d
825. Finally, it is the accuracy of the summary, not the
truth or falsity of the information being summarized, that is
the “benchmark of the privilege.” Gist v. Macon County
Sheriff's Department, 284 Ill.App.3d 367, 376, 219 Ill.Dec.
701, 671 N.E.2d 1154 (1996). A defamatory statement is
not actionable if it is privileged; this is a question of law.
Solaia Technology, 221 Ill.2d at 585, 304 Ill.Dec. 369, 852
N.E.2d 825.
[7] In the present case, the subject article published by
the defendant was a complete and accurate summary of an
Page 5
official report from the Lake in the Hills police department.
The defendant opened an e-mail from the Lake in the Hills
police department on December 29, 2006, that stated the
plaintiff was charged with the crimes of theft and attempted obstruction of justice. The fair-report privilege
applied to the publication of this information because it
was an official report from a police department. Maple
Lanes, 322 Ill.App.3d at 844, 256 Ill.Dec. 124, 751 N.E.2d
177; Gawel, 1 Ill.App.3d at 483, 274 N.E.2d 628. Furthermore, the defendant did not make any omissions or
additions to its publication that would give any sort of false
impression. The published article reiterated the exact information received from the police department. Therefore,
the defendant's publication was accurate, and therefore
privileged, under the fair-report privilege. Solaia Technology, 221 Ill.2d at 590, 304 Ill.Dec. 369, 852 N.E.2d
825.
The plaintiff argues that the publication was not a
complete report of the official proceeding because the
defendant initially reported the information contained in
only the first e-mail. However, pursuant to Shaw's affidavit, at the time the defendant sent the article for publication, it had not opened the second e-mail. Indeed, Shaw's
affidavit states that the defendant had not read the second
e-mail until after the article was published. Therefore,
because it had not opened the second e-mail before publication, the defendant completely summarized the only
report it had opened from the Lake in the Hills police department. Even though what was reported in the defendant's publication was false, the privilege still applies because the defendant completely and accurately reported
what it had seen. Gist, 284 Ill.App.3d at 376, 219 Ill.Dec.
701, 671 N.E.2d 1154.
The plaintiff also contends that the trial court erred in
granting summary judgment when a reasonable juror could
find that the defendant abused the fair-report privilege by
acting recklessly and not taking the appropriate steps to
reasonably ensure that its publication *751 was accurate
and complete. The plaintiff suggests that the defendant was
reckless by not checking its e-mail or covering the Lake in
the Hills police department's bulletins during the holiday
© 2013 Thomson Reuters. No Claim to Orig. US Gov. Works.
922 N.E.2d 1196
397 Ill.App.3d 746, 922 N.E.2d 1196, 337 Ill.Dec. 619, 38 Media L. Rep. 1413
(Cite as: 397 Ill.App.3d 746, 922 N.E.2d 1196, 337 Ill.Dec. 619)
weekend. The plaintiff further argues that whether the
defendant abused the fair-report privilege was a question
of fact for a jury to decide.
**1201 ***624 [8][9] Once a qualified privilege is
established, a communication is actionable only if the
plaintiff can show that the defendant abused the privilege.
Vickers, 308 Ill.App.3d at 404, 241 Ill.Dec. 698, 719
N.E.2d 1101. Generally, a plaintiff can establish abuse of a
qualified privilege by showing actual malice. Gist, 284
Ill.App.3d at 374, 219 Ill.Dec. 701, 671 N.E.2d 1154.
Malice is shown when the defendant knew the information
it published to be false or acted in reckless disregard of the
truth or falsity of the information. Gist, 284 Ill.App.3d at
374, 219 Ill.Dec. 701, 671 N.E.2d 1154.
However, in Solaia Technology, our supreme court
separated the fair-report privilege from other qualified
privileges. The court held that the fair-report privilege
overcomes allegations of malice and permits a defendant to
publish a report of an official proceeding even though the
defendant knows that the report contains a false and defamatory statement. Solaia Technology, 221 Ill.2d at 587,
304 Ill.Dec. 369, 852 N.E.2d 825, citing Restatement
(Second) of Torts § 611, Comment b (1977). According to
Solaia Technology, the only way the fair-report privilege
can be abused is if the report published was not an accurate
or fair abridgement of the official proceeding. Solaia
Technology, 221 Ill.2d at 588, 304 Ill.Dec. 369, 852
N.E.2d 825, citing Restatement (Second) of Torts § 611,
Comment b (1977). For example, a reporter abuses the
privilege when he adds or omits information that was not
part of the official proceeding so as to convey a defamatory
impression. Solaia Technology, 221 Ill.2d at 590, 304
Ill.Dec. 369, 852 N.E.2d 825.
Page 6
either incomplete or inaccurate. Thus, summary judgment
in favor of the defendant was appropriate in this case. In so
ruling, we are not unsympathetic to the plaintiff's injury to
reputation; however, the state of the law at this time does
not include a timeliness component, or an obligation to
review updated information, in determining the fairness
and accuracy of a published report. Furthermore, the record shows that when the defendant received the second
e-mail, it immediately removed the initial report from its
Web site and published a retraction the next day.
*752 For the foregoing reasons, the judgment of the
circuit court of McHenry County is affirmed.
Affirmed.
JORGENSEN and HUDSON, JJ., concur.
Ill.App. 2 Dist.,2010.
Eubanks v. Northwest Herald Newspapers
397 Ill.App.3d 746, 922 N.E.2d 1196, 337 Ill.Dec. 619, 38
Media L. Rep. 1413
END OF DOCUMENT
[10] In the present case, the defendant did not abuse
the fair-report privilege, because the publication at issue
was an accurate summary of the first e-mail received from
the Lake in the Hills police department. The plaintiff does
not dispute this fact. Furthermore, because the defendant
had not opened the second e-mail until after the report was
published, the second e-mail did not render the publication
© 2013 Thomson Reuters. No Claim to Orig. US Gov. Works.