Defamation, Libel, Slander and Cyber Smear

Words and speech have the power to change people’s minds, and on occasion to change the world. While the United States Constitution protects our freedom of speech, the legal system discourages speech that presents a person or business in a false light, unfairly disparages them, or makes false accusations against them. Defamation law allows a person or business to recover damages caused by someone’s false or misleading statement. Unfortunately, some plaintiffs use defamation claims against legitimate critics, subjecting them to expensive litigation and offering a quick settlement in exchange for their silence. If you are the subject of a libel or slander claim, you need the assistance of a Chicago defamation defense lawyer who can advise you of your rights and assert privileges and defenses on your behalf.

Defamation: Slander and Libel

The legal term “defamation” covers any allegedly false statement of fact about a plaintiff that is made available to a third party that harms the plaintiff’s reputation. A defamatory statement made verbally is generally known as “slander.” When written, it is called “libel.” Modern law though has abandoned the distinction between libel and slander and simply refers to them both as “defamation.” Recently-coined terms like “cybersmearing” refer to defamatory statements made on the internet or in other electronic communications.

The First Amendment

The First Amendment grants expansive protection to speak one’s mind without fear of liability. This includes the ability to criticize a business or individual and to share one’s opinion on public issues. Over the years, the Supreme Court has consistently reaffirmed the First Amendment’s protection of critical speech and pure opinion. Thus, any claim of defamation must be considered in light of a defendant’s First Amendment right of free speech.

Public vs. Private Figure

The identity of the plaintiff makes a difference in many defamation claims and affects what the plaintiff must prove to establish his claim. Public figures have fewer protections than private figures, as the courts recognize a strong public interest in discussing them. This could include people who seek out publicity, such as politicians and celebrities, but also people thrust into the spotlight because of a newsworthy event.

Matters of Public Concern

Equally important is the subject matter of the allegedly defamatory statements. Courts recognize that matters of public concern require greater protection from liability for defamation. This ensures that individuals or businesses will not self-censor and the public will have uninhibited access to statements about matters of public concern.

Truth as a Defense

Truth is an absolute defense to defamation. Statements of opinion, meaning ones that are not easily proven or disproven, are also usually not considered defamatory.

The burden is on the plaintiff to prove both the falsity of the statement and any damages that allegedly resulted. A defendant in a defamation case can fight the allegations by demonstrating the truth of the statement in question, challenging the claims of damages, or showing that the statement was fundamentally one of opinion rather than fact.

Substantial Truth

Closely tied to the defense of truth is the “substantial truth” doctrine. Under the doctrine of “substantial truth,” a statement that contains small factual inaccuracies may still be considered true (i.e. immune from liability for defamation) if the “gist” or the “sting” of the statement is true. When the defendant proves that the “gist” or “sting” of the statement is true, the entire statement is considered true.

Innocent Construction

In Illinois and a number of states, a seemingly defamatory statement may be considered non-defamatory if the statement has an innocent construction. A defendant will have the opportunity to present the non-defamatory interpretation and to explain why the court should interpret the statement in the non-defamatory way.

Anti-SLAPP Statutes

A defendant in a defamation suit may also receive protection from a statute known as a “strategic lawsuit against public participation” or anti-SLAPP statute. Anti-SLAPP statutes protect defendants from lawsuits that allege defamation but actually intend only to silence a critic. Businesses and government agencies have brought these types of lawsuits against journalists, activists, bloggers, and other businesses with the intention of bogging the defendant down in expensive litigation. The plaintiff may then offer to settle for a modest sum, or even no money at all, and the defendant’s agreement to retract the allegedly defamatory statements and refrain from making similar statements in the future. To protect against this abusive tactic, many states have enacted anti-SLAPP statutes. These statutes generally give a defendant a way to challenge the plaintiff’s motivation in bringing suit, and to move to dismiss, before incurring substantial expenses. If a defendant’s anti-SLAPP motion is successful, a court may dismiss the lawsuit and, in some instances, sanction the plaintiff for bringing the lawsuit in the first place.

If you are a defendant in a defamation lawsuit or have been threatened with a defamation lawsuit, understanding your rights and defenses is critical. A knowledgeable and skilled defamation attorney can help to vindicate your rights and protect you from liability.

Based in the Chicago area, our defamation defense lawyers bring decades of experience in the area of First Amendment law and defamation defense. We are dedicated protecting the free speech rights of our clients and defending them against lawsuits that jeopardize these rights. DiTommaso♦Lubin has offices in Oakbrook Terrace and Chicago, Illinois and represents clients in the greater Chicagoland area and throughout Illinois, Indiana, and Wisconsin. To schedule a consultation with a Chicago defamation defense attorney, contact us via email, at (877) 990-4990, or locally at (630) 333-0000.

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