The Internet gives many people the false sense that they can say whatever they want about a person or business with no repercussions. This is due, in large part, to the nature of the Internet, which allows people to express their opinions anonymously and seemingly without accountability.
“Internet message boards and review sites provide a venue where users — customers and pretenders alike — can offer anonymous evaluations and judgments about restaurants, hotels, medical and legal professionals and businesses,” says Mitchell L. Marinello, a partner with Novack and Macey LLP. “Unfortunately, sometimes these reviews cross the boundary between mere opinion and defamation.”
When they do, they can cause great damage, because they can linger on the Internet for years. But if a company is the victim of Internet defamation, it has remedies. Through diligent effort, a company can identify the defamers, take action to have defamatory statements removed from the Internet, require the defamers to pay damages and obtain injunctions prohibiting the defamers from doing it again.
Smart Business spoke with Marinello about Internet defamation and what a company can do to protect itself.
What is the definition of defamation?
In Illinois, defamation is divided into two categories: defamation per se and defamation per quod. Illinois recognizes four categories of statements that constitute defamation per se: words that impute the commission of a criminal offense; impute infection with a loathsome communicable disease; impute an inability to perform or want of integrity in the discharge of duties of office or employment; or impute a lack of ability in his or her trade, profession or business. Statements that constitute defamation per se are thought to be so obviously and materially harmful to the plaintiff that injury to his or her reputation may be presumed.
Statements are defamatory per quod when the defamatory character of the statement is not apparent on its face and extrinsic circumstances are necessary to demonstrate its injurious meaning; and where the statement is defamatory on its face but does not fall within one of the limited categories of statements that are actionable per se. Unlike a defamation per se action, a plaintiff bringing a defamation per quod claim is not presumed to have suffered damages and instead must plead and prove special damages in order to prevail.
What is the difference between nonactionable opinion and defamation?
Even if the words used could be considered defamatory, they must be statements of fact or mixed statements of fact and opinion to be actionable. This is determined by considering the totality of the circumstances and whether the statement can be objectively verified as true or false.
An opinion can be defamatory if it implies that undisclosed defamatory facts are the basis for the opinion. Such statements are considered to be mixed statements of opinion and fact and are actionable.
To determine if a statement is opinion or factual, Illinois courts consider whether the statement has a clear meaning for which a consensus of understanding exists; whether it is verifiable, i.e., capable of being objectively characterized as true or false; whether the literary context would influence the average reader’s readiness to infer that a statement has factual content; and whether the broader social context or setting in which it appears signals a usage as either fact or opinion.
A defamatory statement will not be characterized as nonactionable opinion unless it meets a stringent standard: only statements that cannot reasonably be interpreted as stating facts are protected. A statement of fact can also be protected as opinion if it is an obvious exaggeration.
What should you do once you learn you’ve been defamed?
The first step is to evaluate the comments and the amount of publicity they are likely to receive and make a judgment about how harmful they are and what should be done. Overreacting to negative comments can create more bad publicity or cause a disgruntled critic to become even more vocal. At the first instance, Internet defamation needs to be treated like a public relations problem.
The second step may be to ask the site if it will remove the statements. Sometimes, such comments violate a site’s policies. Defamatory comments also can be resolved over time if you believe they will be drowned out by positive comments from people pleased with your goods or services. You cannot sue the Internet provider for allowing defamatory statements to be published on its site, as Internet sites are immune from defamation suits under federal law. If the statement is so harmful that legal action is contemplated, you need to determine who posted the statements. It may be necessary to file a petition for pre-suit discovery and then to serve a subpoena on the Internet site requesting the poster’s identity.
Posters may try to prevent you from learning their identities by filing a motion to quash the subpoena, alleging they have a First Amendment right to remain anonymous. Although certain types of anonymous speech are protected, there is no constitutional right to defame. The Illinois Appellate Court recently held that it is overly broad to assert that anonymous speech, in and of itself, warrants constitutional protection. Thus, such motions should fail. All private businesses and individuals have a right to protect their reputations.
What defenses and privileges do defendants have in defamation cases?
Illinois courts recognize several privileges and defenses, including substantial truth, the fair reporting privilege, the innocent construction rule and nonactionable opinion. A successful plaintiff will likely have to overcome one or more of these.
What damages can be recovered for defamation?
There have been substantial monetary judgments issued for defamation. The judgment can include both compensatory and punitive damages.
Mitchell L. Marinello is a partner with Novack and Macey LLP. Reach him at (312) 419-6900 or MMarinello@novackmacey.com.
Previously, the Illinois Rules of Evidence were scattered across several sources, making it difficult and inefficient to deal with them.
The Illinois Supreme Court began to change that in November 2008 when it created a Special Supreme Court Committee on Evidence to address the fact that most Illinois rules of evidence were “dispersed throughout case law, statutes and Illinois Supreme Court rules, requiring that they be researched and ascertained from a number of sources.”
“The new codification of the Illinois Rules of Evidence is significant for three reasons: efficiency, certainty and uniformity,” says P. Andrew Fleming, a partner with the business litigation specialty firm Novack and Macey LLP. “The new rule provides efficiency because there is now primarily one easy-to-find source for all rules of evidence in Illinois. A single, codified rule provides more certainty than the common law, which often required litigants to piece together the rules from a collection of case law. And, the new rules provide uniformity because, for example, they should help to eliminate any disagreements between trial court judges or first-tier appellate courts in Illinois over the rules of evidence.”
As a result of the committee’s work, the new codification went into effect on Jan. 1, 2011, so companies would be wise to take the time to fully understand its impact.
Smart Business spoke with Fleming about the new codification of the Illinois Rules of Evidence, and how it could affect you and your company.
Have there been any changes since the new codification went into effect?
Yes, but for the most part, the committee attempted to incorporate Illinois rules that already had been clearly adopted in cases or statutes. So, pre-existing Illinois law — at least when it was clear and well developed — remains largely the same.
For example, when it comes to the admission of expert testimony, the Illinois Supreme Court adopted in 2002 what is known as the Frye test for admissibility, which means an expert’s opinion must be based on generally accepted scientific principles or techniques.
Incidentally, Illinois evidentiary law — even after codification — is different in this respect than a number of other jurisdictions on this point. Indeed, many other jurisdictions (including the federal courts) follow the rule set forth by the U.S. Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) and its progeny.
Under Daubert, courts may allow experts to base their opinions on reliable and sound theories, even if those theories are new or cutting edge and have not had sufficient time to become generally accepted.
What are some of the changes?
The committee intended that the codified rules incorporate generally accepted rules from other states and the federal courts when they did not conflict with settled Illinois evidentiary law. The rules also eliminate a few things that the committee believed were unsound or relics of the past.
For example, under prior Illinois law, statements made during settlement negotiations might have been admissible unless they were stated ‘hypothetically,’ but the new rules do away with that. Generally, under the codified rules, statements made during settlement talks are now inadmissible with or without any such qualifications.
Of course, you still have to be careful about what is said during settlement negotiations for a variety of reasons because statements made during settlement talks can be admitted for certain purposes and can often come back to haunt a client. For example, if Party A represents that a particular fact is true during settlement negotiations, but later it turns out that that representation was untrue, Party B can seek to set aside and rescind the settlement agreement. In addition, Party A could be held liable for fraud.
There are other changes. For instance, when parts of writings or recordings are used by an opponent, the codified rules now allow the other party to require other parts of that writing, recording or other writings/recordings that ‘ought in fairness’ to be considered at the same time. The committee recommended this change even though prior Illinois law was thought to have limited admission to parts of the same writing or recording.
Further, as noted by the committee, the codified rules now make it clear that attorneys no longer need to show witnesses prior inconsistent statements before they are cross-examined on those statements and, with respect to statements of then-existing mental/physical conditions, the codified rules eliminate the requirement that declarants must be unavailable to testify before such statements can be admitted.
The federal courts have long had codified rules of evidence. Are the Illinois rules the same?
Not always. In fact, it would be a mistake to assume that the Illinois rules are the same as the federal rules. For example, Illinois and the federal rules differ when it comes to expert opinions. Moreover, according to the committee, Illinois common law did not recognize the present-sense impression or learned treatise exceptions to the hearsay rule even though they are recognized as hearsay exceptions under the federal rules. Thus, the codified Illinois rules do not expressly recognize these hearsay exceptions. There are also a number of other instances where the rules differ.
Are there any unresolved issues?
Yes. For example, there is a case pending in the Illinois Supreme Court that might resolve a conflict in the lower courts concerning whether actions taken to make a product less dangerous (before the product caused any harm) could be admitted into evidence.
Some lower Illinois courts have said yes; others have said no. The question is scheduled to be resolved by the Illinois Supreme Court. If it is, then the Illinois Supreme Court’s pronouncement on this issue likely will be codified into the Illinois Rules of Evidence.
P. Andrew Fleming is a partner with the business litigation specialty firm Novack and Macey LLP. Reach him at (312) 419-6900 or firstname.lastname@example.org.
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