Brief Overview of Defamation

“Defamation” is injury to reputation based on an unprivileged false statement of fact published to third parties. The law once separated defamation into libel (written words) and slander (spoken words). Defamation is an ever-evolving body of law with its roots in the English common law (although every legal system on earth recognizes injury to reputation in some form, because such injury is so fundamental in human relations of all kinds).

Defamatory statements are per se and per quod. A statement is defamatory per se when the injury to reputation is apparent based only the words used, i.e, when the words themselves (per se) obviously harm the plaintiff’s reputation such that injury is presumed and the plaintiff need not prove the fact of injury. Illinois considers five categories of statements or publications to be defamatory per se:

• Imputation of the commission of a crime;
• Imputation of infection with a loathsome communicable disease;
• Imputation of a want of integrity or inability to perform or discharge of the duties of one’s office or employment;
• Imputation of a lack of ability in or that prejudice a person in his or her trade, profession, or business; and
• False accusations of adultery or fornication.

A defamation per quod claim is where the defamatory nature of a statement is - unlike a per se defamation - not apparent from the words themselves, even to the extent the words themselves may not identify the plaintiff directly. In per quod cases, extrinsic evidence, i.e., words beyond the alleged defamatory statement, must prove that the subject statement is of or about the plaintiffs and injures the plaintiffs’ reputation. Also, per quod claims can arise when an alleged defamatory statement may injure reputation but does not fall within one of the five classes of actionable per se statements above.

The attorneys at Lubin Austermuehle have over thirty years of experience defending and prosecuting defamation, slander libel and cyber smear lawsuits. We are knowledgeable regarding the changes and complexities of this evolving area of the law. You can view here a federal court opinion where our client defeated a libel per se claim with an innocent infringer defense. Here is an arbitration decision where our client prevailed at an evidentiary hearing. We proved through cross-examination of the defendant car dealer's president that our client's 20 plus Youtube videos criticizing the dealership for engaging in consumer fraud were truthful, were protected opinions under the First Amendment or involved minor errors of fact. These cases received extensive press coverage. You can view the press coverage here and here. We also obtained an apology and full retraction for our large diamond dealer client as part of a confidential financial settlement following our filing of a $16 million libel suit in federal court. You can read about that case here.

We are committed to fighting for our clients' rights in the courtroom and at the negotiating table. Conveniently located in Chicago and Elmhurst, Illinois, we have successfully litigated defamation, trade libel, internet defamation, and cyber smear cases for clients all over the Chicago area. To schedule a consultation with one of our skilled attorneys, you can contact us online or give us a call at 630-333-0333.