Defamation Per Quod
Defamation claims are classified either as defamation per se or defamation per quod. The phrase “per quod” is a Latin phrase which means “whereby.” In defamation law, the phrase is used to distinguish defamation claims where the existence of a thing is not explicit. Thus, where statements are defamatory per quod, the defamatory nature (i.e. the harm to the plaintiff’s reputation) is either: (1) not apparent without extrinsic evidence to prove its injurious nature or (2) is apparent but does not fall into one of the limited categories of statements recognized as being defamatory per se.
A cause of action for defamation has three elements: (1) a false statement about the plaintiff; (2) made to a third party (also known as publication); (3) that harms the plaintiff’s reputation. It is the third element, harm to the plaintiff’s reputation, that is the primary difference between libel per se and libel per quod claims.
With defamation per se claims, the harm to the plaintiff’s reputation is so obvious and apparent from the face of the claim that extrinsic facts are not required and damages are presumed. In defamation per quod claims, on the other hand, the harm is not apparent on the face of the statement, typically, and damages are not presumed.
A statement is not libelous “on its face” if the defamatory meaning would appear only to third parties who might have some knowledge of specific facts or circumstances not included in the statement or which are not matters of common knowledge. In other words, the defamation per quod plaintiff must prove why a statement otherwise innocent on its face is actually defamatory through use of extrinsic facts or evidence. Defamation per quod claims always requires the use of extrinsic evidence or outside facts.
Because damages are not presumed in defamation per quod actions under Illinois law, the plaintiff must plead and ultimately prove special damages (also referred to by some courts as “special harm”) to prevail. The term “special damages” is a legal term of art that means the loss of something with pecuniary value. In other words, a plaintiff alleging defamation per quod must be able to show a specific, quantifiable loss of something of pecuniary value, such as a commission or a salary, resulting from the defamation. In short, a defamation per quod claim is the idea that one may only be held liable for defamation if the plaintiff proves that the statement caused actual damage.
Illinois law only recognizes five types of statements as being defamatory per se. All other types of defamatory statements are considered to be defamatory per quod. The five categories of statements that Illinois recognizes as defamatory per se are: (1) accusing a person of committing a crime, (2) accusing a person of being infected with a “loathsome communicable disease,” (3) accusing a person of lacking ability or integrity in the performance of job duties, (4) statements that otherwise prejudice a person in his profession or business, and (5) accusing a person of adultery or fornication.
Defamation law continues to change and evolve. Defamation attorneys must have extensive knowledge of the history of defamation law, recent changes in the law, common defenses and privileges of defamation law, common sources of evidence, and other aspects of defamation law to effectively prosecute claims for businesses, professionals and individuals who have been defamed or defend against such claims.
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 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.