Defamation Defenses

Unlike other areas of common law, where judges have made the law in one specific area or another over hundreds of years based on the interactions and affects of one-on-one conduct between individual actors, the law and especially the defenses to defamation are profoundly “constitutional.” They are based on the public policies of advancing public discourse and reporting of wrong doing or other matters that broadly affect the public interest or common good, rather than simply how one act of misconduct affects just one person.

Accordingly, the main defamation defenses in Illinois are rooted in constitutional free speech based on the First Amendment to the United States Constitution, and the related public policy of protecting or advancing the public interest or common good. The defamation defenses are truth, absolute privilege (including litigation privilege addressed here), qualified privilege, innocent construction, and opinion.

Truth is the absolute or complete defense to defamation. The defendant will prevail on a truth defense by establishing simply that the alleged defamatory statement is substantially true, i.e., when the “gist” or “sting” of the alleged defamatory statement is true. Substantial truth is presumptively for juries to decide, unless no reasonable jury could find anything but substantial truth, in which case the Court may determine substantial truth as question of law.

Absolute privilege in Illinois (and elsewhere) exists because of public policy, and extends to statements made during any stage before or required to commence a judicial or quasi-judicial proceeding. The foundation for absolute privilege is the public policy rationale that while in a vacuum a defendant’s conduct might otherwise seem defamatory and thus actionable, the communication is protected and no liability can result because the defendant was advancing a public, community or social interest, e.g., falsely reporting a doctor to licensing authorities for overprescribing prescription drugs or falsely reporting an attorney to the disciplinary authorities for stealing money from a client. Such statements even if false are not actionable as absolutely privileged because they promote the public interest in protection from professionals whose conduct can profoundly affect the public health and welfare.

Absolute privilege provides a complete defense or bar to any defamation claim, regardless of motive or the facial or actual unreasonableness of the defendant’s conduct. Absolute privilege as a public policy is an anti-chilling effect guarantee, so people are not dissuaded from complaining appropriately to courts, regulators disciplinary authorities, etc.

Qualified privilege - as distinct from absolute privilege - bars liability for some classes of defamatory statements depending on the surrounding occasion or circumstances. A qualified privilege can be lost if abused. Where motive or context may be irrelevant in the case of an absolute privilege and a false statement may be protected, the application or non-application of a qualified privileges depends on recognition by the courts of certain duties or interests and the lack of abuse of the privilege.

Generally, there are three scenarios that implicate qualified privilege: (1) where the interest of the person making the report is directly involved, like a teacher is generally obligated to report suspected child abuse to protective services, even if the facts turn out to be incorrect and the parents were to claim there was a defamation; (2) when the alleged defamatory statement concerns the person or third party about whom the statement was published or communicated, like a report to the FBI that one’s neighbor of Middle Eastern origin seems like a terrorist and was overhead muttering about the desire to kill infidels in a shopping center; and (3) in the workplace a report of something like hostile environment sexual harassment or other discrimination that is already firmly against public policy.

Abuse of a qualified privilege can make an otherwise non-actionable defamatory communication actionable. Proof of an abused qualified privilege requires a plaintiff to demonstrate that the statement was made with a direct intent to injure him or her, and/or a reckless disregard of the plaintiff’s rights that caused damage. Reckless disregard is proved by failures reasonably to investigate the facts and the truth; when a statement that is too broad or beyond the scope of what would be relevant to remain qualified; or publication of otherwise qualified statements are made to people beyond whom the qualified privilege extends (e.g., to those who do not need to know).

Our more thorough discussion of Innocent Construction is here. Briefly, a reasonably innocent construction of what a plaintiff may allege is defamatory will warrant dismissal of the complaint, regardless whether a statement falls into one of the categories of otherwise actionable words that constitute liberal per se. Allegedly defamatory publications are simply not actionable per se if they may be interpreted innocently. The innocent construction analysis requires the court to give words as published without reference to extrinsic evidence, their plain, natural and obvious meaning to determine their implication - innocent or defamatory. If a defamatory meaning is clear and conveyed in the subject statement or publication, the court will not try to find an innocent construction. Whether a statement or publication contains language that can be construed innocently is a question of law for the court.

Our more thorough discussion of Opinion is here. Illinois no longer recognized a bright line distinction between fact and opinion under the First Amendment to the United States Constitution. It is no longer possible to say that an opinion is absolutely protected by the First Amendment and therefore not actionable in a defamation action. This blurring of distinction is based on the United States Supreme Court’s reexamination of defamation law under the First Amendment. The Supreme Court has rejected an artificial dichotomy between opinion and fact, and held that there is no separate First Amendment privilege for opinion and that a false factual assertion can be defamatory when veiled or wrapped into an opinion.

Generally, the First Amendment gives constitutional protection to an statement as opinion only if the statement cannot be reasonably interpreted as stating actual facts. Statements must be viewed in their specific context, and if they obviously embellish or exaggerate a literal fact, they are hyperbolic or rhetorical and cannot be defamatory.

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. 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 non-compete and trade secret and covenant not to compete 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.