HOW TO PROVE YOUR CASE FOR DEFAMATION
ISBA LABOR & EMPLOYMENT LAW SECTION
NOVEMBER 30, 2012
CHICAGO, IL
Lori D. Ecker
Law Office of Lori D. Ecker
120 N. LaSalle St., Ste. 1050
Chicago, IL 60602
312/855-1880
www.loriecker.com
I.
DEFAMATION GENERALLY
The term defamation encompasses both slander (verbal statement) and libel (written
statement).
A.
A statement is defamatory if it tends to cause such harm to the reputation of
another that it lowers that person in the eyes of the community or deters third
persons from associating with him. Restatement (Second) of Torts §559.
B.
To state a defamation claim, a plaintiff must present facts showing that the
defendant made a:
1.
a false statement concerning the plaintiff; and
2.
an unprivileged publication of that statement to a third party; and
3.
that the publication caused damages.
Green v. Rogers, 234 Ill.2d 478, 491 (2009).
II.
C.
The Slander and Libel Act, 740 ILCS 145/0.01, et seq. recognizes a cause of
action for a false charge of fornication or adultery, as well as a charge of falsely
swearing under oath.
D.
There is a one-year statute of limitations for a defamation claim.
735 ILCS §5/13-201.
WHO MAY BE DEFAMED
A.
Individuals (“another”)
B.
Individuals who are part of a group or class of persons, where:
1.
the group or class is so small that the matter can reasonably be understood
to refer to the member, or
2.
the circumstances of publication reasonably give rise to the conclusion
that there is a particular reference to the member.
Restatement (Second) of Torts §564A.
C.
Corporations are defamed where:
1.
if the corporation is one for profit, and the matter tends to prejudice it in
the conduct of its business or to deter others from dealing with it, or
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2.
if, although not for profit, it depends upon financial support from the
public, and the matter tends to interfere with its activities by prejudicing it
in public estimation.
Restatement (Second) of Torts §561.
D.
III.
Partnerships and Associations
Restatement (Second) of Torts §562.
A FALSE AND DEFAMATORY STATEMENT
A.
A plaintiff must allege injury as a result of the defamatory statement. To do so, a
plaintiff must plead and prove that s/he incurred “special damages,” unless the
defamatory statement constitutes defamation per se.
B.
Defamation Per Se
1.
Illinois courts have recognized four categories of defamation per se:
a.
words that impute the commission of a criminal offense;
b.
words that impute infection with a loathsome communicable
disease;
c.
words that impute an inability to perform or a want of integrity in
the discharge of one’s duties of office or employment;
d.
words that impute a person lacks ability or otherwise prejudices
that person in her or his profession; and
e.
words that impute adultery or fornication.
Green v. Rogers, 234 Ill.2d 478, 491-92 (2009).
2.
In addition, the Illinois legislature has recognized another category of
statements that are defamatory per se: words that charge a person with
“swearing falsely.” 740 ILCS §145/2
3.
Significantly, special damages need not be plead in an action for
defamation per se. This is because “(t)he words themselves are
considered to be so obviously and inevitably hurtful to the plaintiff that
damage to his reputation may be presumed.” Mittelman v. Witous, 135
Ill.2d 220, 239 (1989).
4.
A statement will not be found to be defamatory per se if it is reasonably
capable of an innocent construction.
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5.
C.
a.
The innocent construction rule originated in Illinois from obiter
dictum in John v. Tribune Co., 24 Ill.2d 437 (1962).
b.
Illinois courts make a threshold determination whether a
defamatory statement can reasonably be interpreted as defamatory
to the plaintiff. Where, for example, no reasonable person could
have believed that the defamatory statement was describing actual
facts about the plaintiff, no cause of action lies.
c.
“Under the “innocent construction rule,’ a court must consider the
statement in context and give the words and any implications
arising from them there natural and obvious meaning. . . . If the
statement may reasonably be innocently interpreted, it cannot be
actionable per se. . . . At the same time, when the defendant
clearly intended and unmistakably conveyed a defamatory
meaning, a court should not strain to see an inoffensive gloss on
the statement.” Leyshon v. Diehl Controls North America, Inc.,
407 Ill.App.3d 1, 6 (2011).
A complaint for defamation per se need not set forth verbatim the
allegedly defamatory words. However, the “substance of the statement
must be pled with sufficient precision and particularity so as to permit
initial judicial review of its defamatory content.” Further, when pleading
the essential elements of defamation per se “on information and belief,”
the facts on which the belief is founded must be stated in the complaint.
Green v. Rogers, 234 Ill.2d478, 492-495 (2009).
Defamation Per Quod
1.
Statements actionable per quod necessitate extrinsic facts or innuendo to
explain their defamatory meaning, as well as allegations of specific facts
establishing that some substantial injury resulted to the aggrieved person
from their use. See Tunca v. Painter, 965 N.E.2d 1237, 1252-53 (1st Dist.
2012).
2.
The innocent construction rule does not apply to statements alleged to be
defamation per quod. Therefore, a plaintiff attempting to avoid the
innocent construction rule may plead defamation per quod and use
extrinsic facts to establish the defamatory nature of a statement not
defamatory on its face. See Mittelman v. Witous, 135 Ill.2d 200, 233
(1989).
3.
In order to pursue a claim for defamation per quod, a plaintiff must plead
loss resulting from the alleged defamatory statement (“special damages”)
in order to recover. Bryson v. News America Pub. Inc., 174 Ill.2d 77, 88
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(1996); Salamone v. Hollinger Int’l., Inc., 347 Ill.App.3d 937, 842 (1st
Dist. 2004).
D.
IV.
Opinion Distinguished from Statement of Fact
1.
Even if a statement is not readily susceptible to an innocent interpretation,
it will not be actionable if it is an expression of opinion. Mittelman v.
Witous, 135 Ill.2d 220, 239-40 (1989).
2.
The “law of defamation does not provide redress for every expression of
opinion touching upon an individual’s competence or ability.” Colson v.
Stieg, 86 Ill.App.3d 993, 995-96 (2nd Dist. 1980).
3.
The Restatement (Second) of Torts distinguishes between “pure opinion”
and “mixed opinion.” Mixed opinion is an opinion in form or context that
is apparently based on facts which have not been stated by the defendant
or assumed to exist by the parties to the communication. §566. If the
mixed expression of opinion gives rise to the inference that there are
undisclosed facts that justify the opinion expressed, the statement is
actionable defamation.
4.
The Mittelman court adopted the following four-part analysis to
supplement the Restatement’s approach: (1) whether the statement has a
precise core of meaning for which a consensus of understanding exists, or
conversely, whether the statement is indefinite and ambiguous; (2)
whether the statement is verifiable, i.e., capable of being objectively
characterized as true of false; (3) whether the literary context of the
statement would influence the average reader’s readiness to infer that a
particular statement has factual content; and (4) whether the broader
social context or setting in which the statement appears signals a usage as
either fact or opinion. 135 Ill.2d at 243, citing, Olman v. Evans, 750 F.3d
970 (D.C. Cir. 1984).
PUBLICATION
A.
Original Publication
Publication of a defamatory matter is its communication intentionally or by
negligent act to one other than the person defamed. Restatement (Second) of
Torts §577(1).
An allegedly defamatory remark is “published” when it is communicated to
someone other than the plaintiff. An internal communication within a company
qualifies as a publication. Gibson v. Philip Morris, Inc., 292 Ill.App.3d 267, 275
(5th Dist. 1997).
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V.
DEFENSES
A.
B.
Truth
1.
There is no liability for defamation if the statement is true. Restatement
(Second) of Torts §581A.
2.
A defendant need only demonstrate the “substantial” truth of the allegedly
defamatory statement to establish the defense. Harrison v. Chicago SunTimes, Inc., 341 Ill.App.3d 555, 564 (1st Dist. 2003).
Absolute Privilege
Consent:
Invited-Defamation
“Where the publication is procured by the plaintiff, it is not actionable.”
Leyshon v. Diehl Controls North America, Inc., 401 Ill.App.3d 1, 9 (1st
Dist. 2011). See also Restatement (Second) of Torts §583.
Exception: The defense does not apply in situations where the person
defamed has made an honest inquiry or investigation to ascertain the
existence, source, content or meaning of a defamatory publication.
Restatement (Second) of Torts §584.
Irrespective of Consent:
1.
Judicial officers
A judge or other officer performing a judicial function is absolutely
privileged to publish defamatory matter in the performance of the function
if the publication has some relation to the matter before him.
Restatement (Second) of Torts §585.
2.
Attorneys at law
An attorney at law is absolutely privileged to publish defamatory matter
concerning another in communications preliminary to a proposed judicial
proceeding, or in the institution of, or during the course and as a part of, a
judicial proceeding in which he participates as counsel, if it has some
relation to the proceeding. Restatement (Second) of Torts §586.
3.
Parties to judicial proceedings
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A party to a private litigation or a private prosecutor or defendant in a
criminal prosecution is absolutely privileged to publish defamatory matter
concerning another in communications preliminary to a proposed judicial
proceeding, or in the institution of or during the course and as a part of, a
judicial proceeding in which he participates, if the matter has some
relation to the proceeding. Restatement (Second) of Torts §587.
4.
Witnesses in judicial proceedings
A witness is absolutely privileged to publish defamatory matter
concerning another in communications preliminary to a proposed judicial
proceeding or as a part of a judicial proceeding in which he is testifying,
if it has some relation to the proceeding. Restatement (Second) of Torts
§588.
5.
Jurors
A member of a grand or petit jury is absolutely privileged to publish
defamatory matter concerning another in the performance of his function
as a juror, if the defamatory matter has some relation to the proceeding in
which he is acting as juror. Restatement (Second) of Torts §589.
6.
Legislators
A member of Congress of the United States or of a State or local
legislative body is absolutely privileged to publish defamatory matter
concerning another in the performance of his legislative functions.
Restatement (Second) of Torts §590.
7.
Witness in legislative proceedings
A witness is absolutely privileged to publish defamatory matter as part of
a legislative proceeding in which he is testifying or in communications
preliminary to the proceeding, if the matter has some relation to the
proceeding. Restatement (Second) of Torts §590A.
8.
Executive and administrative officers
An absolute privilege to publish defamatory matter concerning another in
communications made in the performance of his official duties exists for
(a) any executive or administrative officer of the United States; or (b) a
governor or other superior executive officer of a state. Restatement
(Second) of Torts §591.
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9.
Husband and wife
A husband or wife is absolutely privileged to publish to the other spouse
defamatory matter concerning a third person. Restatement (Second) of
Torts §592.
10.
Publication required by law
One who is required by law to publish defamatory matter is absolutely
privileged to publish it. Restatement (Second) of Torts §592A.
C.
Qualified, or Conditional Privilege
1.
One who publishes defamatory matter concerning another is not liable for
the publication if
(a) the matter is published upon an occasion that makes it
conditionally privileged and
(b) the privilege is not abused.
Restatement (Second) of Torts §593.
2.
A qualified privilege exists in three categories of circumstances:
(a) circumstances where some interest of the person who publishes the
defamatory matter is involved,
(b) circumstances where some interest of the person to whom the matter is
published or of some other third person is involved,
(c) circumstances where a recognized interest of the public is concerned.
Kuwick v. Star Marketing & Administration, Inc., 156 Ill.2d 16, 29 (1993).
3.
Abuse of the qualified privilege
The defendant has the burden of proving that the privilege exists. Once
that is accomplished, the plaintiff has the burden to prove an abuse of the
qualified privilege by showing a direct intention to injure another, or ***
a reckless disregard of [the defamed party’s] rights and of the
consequences that may result to him. Reckless acts which evidence a
disregard of the defamed party’s rights include the failure to properly
investigate the truth of the matter, appropriately limit the scope of the
material, or limit the publication of the material. Kuwick at 30.
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VI.
“SLAPP”
SLAPPs (Strategic Lawsuits Against Public Participation) are lawsuits aimed at
preventing citizens from exercising certain constitutional rights or at punishing those who
have done so. Illinois and many other states have enacted anti-SLAPP statutes. The
Illinois’ Citizen Participation Act was enacted in 2007 to extinguish SLAPPs and protect
“the constitutional rights to petition, speech, association, and participation in
government.” 735 ILCS 110/15. Further, the Act establishes an expedited legal process
to dismiss SLAPPs in both the trial and appellate courts. 735 ILCS 110/5. And, the Act
mandates the award of reasonable attorney’s fees and costs incurred in connection with
any motion to dismiss, for summary judgment, to strike, or any other judicial pleading to
dispose of the claim. 735 ILCS 110/10.
The Illinois Supreme Court has addressed the scope of the Act in the context of a
defamation claim brought by a company involved in the conversion of a condominium
building in Chicago against the president of the condominium association. In Wright
Development Group, LLC v. Walsh, 238 Ill.2d 620 (2010), the Court held that the
defendant’s statement to a reporter made during a public forum inside an alderman’s
office was immunized from the defamation suit under the Act. Walsh met his burden of
showing that the complaint was “based on, relates to, or is in response to” his acts in
furtherance of his constitutional rights. The burden then shifted to Wright Development
Group to produce “clear and convincing evidence” demonstrating that Walsh’s
statements were not immunized from liability by the Act. 238 Ill.2d at 636. The court
held that Wright Development did not do so and remanded the case to the trial court to
determine all reasonable attorney fees and costs incurred in connection with the motion.
In contrast, the Court in Sandholm v. Kuecker, 2012 IL 111443 (2012), held that a former
high school basketball coach’s action for defamation and false light invasion of privacy
against multiple defendants on the basis of statements made during their campaign to
have him removed due to their disagreement with his coaching style was not a SLAPP
within the meaning of the Act. In a unanimous decision, the Court held that where a
plaintiff files suit genuinely seeking relief for damages for the alleged defamation or
intentional tortious acts of defendants, the lawsuit is not solely based on defendants’s
rights of petition, speech, association, or participation in government and such suit is not
subject to dismissal under the Act. ¶45
VII.
DAMAGES
A.
Compensatory Damages
1.
Where the defamatory statement is actionable per se, the plaintiff is not
required to plead or prove actual damage to his reputation to recover
damages. Presumed damages include:
a.
b.
mental suffering,
personal humiliation,
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c.
d.
impairment of professional reputation and standing in the
community, and
economic loss.
Leyshon v. Diehl Controls North America, Inc., 407 Ill.App.3d 1, 10-11 (1st Dist.
2011) (appellate court held that the trial court’s denial of a remittitur of the jury’s
$2 million compensatory damages award was not an abuse of discretion.)
B.
VII.
Punitive Damages
1.
Punitive damages may be awarded when the defendant’s tortious conduct
evinces a high degree of moral culpability, that is, when the tort is
“committed with fraud, actual malice, deliberate violence or oppression,
or when the defendant acts willfully, or with such gross negligence as to
indicate a wanton disregard of the rights of others.” Slovinski v. Elliot,
237 Ill.2d 51, 58 (2010), citing Kelsay v. Motorola, Inc., 74 Ill.2d 172
(1978). In Slovinski, the supreme court affirmed the appellate court’s
reduction of the punitive damages award from $2 million to $81,600, an
amount equal to the jury’s award of emotional distress damages.
2.
Contrast Leyshon v. Diehl Controls North America, Inc., 407 Ill.App.3d 1
(1st Dist. 2011), where the court upheld the trial court’s reduction of the
punitive damages from $10 million to $6 million, where the compensatory
damages award was $2 million.
YOUR CHECKLIST IN DRAFTING THE COMPLAINT, DRAFTING DISCOVERY
REQUESTS AND OUTLINING DEPOSITIONS
A.
Plaintiff’s Burden of Proof
1.
The defamatory character of the statement
2.
Publication by defendant to someone other than plaintiff
3.
The statement identifies and pertains to plaintiff
4.
The recipient understood the statement as intended to pertain to plaintiff
5.
Special harm to plaintiff as a result of the publication
6.
Defendant’s negligence and/or reckless disregard
7.
Abuse of a conditional privilege
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B.
Defendant’s Burden
1.
Truth of the statement
2.
Presence of circumstances necessary for the existence of a privilege
3.
Innocent construction
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