Defamation Per Se

The tort of defamation (sometimes called defamation of character) can be divided into claims involving two distinct types of defamatory statements: defamatory per se statements and defamatory per quod statements. Statements that are defamatory per se (sometimes referred to generically by courts as libel per se) are so obviously and naturally harmful to a person’s or business’s reputation on their face that proof of injury to the plaintiff’s reputation may be presumed. In other words, proof of special damages is unnecessary in defamation per se claims under Illinois law.

What is Defamation?

Before discussing libel per se claims in particular, it is important to understand what defamation is. Illinois defines defamation as any spoken or written falsehood that is meant to harm a person’s reputation. Defamation can occur in person, in writing, or online. Defamatory statements can be made about an individual or a business. A fundamental principle of defamation law is that a person's good reputation is valuable and anyone that harms that reputation by making false statements must pay for that harm by way of an award of damages.

In Illinois, a defamation claim generally has three elements that the plaintiff the must prove in order to recover: (1) a false statement about the plaintiff; (2) made to a third party (also known as publication); (3) that harms the plaintiff’s reputation. A plaintiff who proves a defamation claim can recover monetary damages and even an injunction in certain circumstances. A claim of defamation is subject to several common defenses and privileges that a defendant is able to assert to avoid liability for defamation.

Five Categories of Defamatory Per Se Statements Recognized by Illinois Law

Illinois law recognizes five types of statements that are considered defamatory per se:

• Imputing that a person committed a crime;
• Imputing that a person is infected with a loathsome communicable disease;
• Imputing that a person is unable or lacks the integrity to perform one’s employment duties;
• Imputing that a person lack ability or otherwise prejudices one in one’s profession; and
• Imputing that a person has engaged in adultery or fornication.

Solaia Tech., LLC v. Specialty Pub. Co., 221 Ill. 2d 558 (2006).

Importantly, a statement can only be considered defamatory per se if the harmful effect is apparent on the face of the statement itself. If extrinsic facts or additional information are required to understand the harmful effect of the statement, then it cannot be defamatory per se. Even if the statement is not defamatory per se, it can still be considered defamatory per quod.

Innocent Construction Rule

The innocent construction rule is a defense that a defendant can raise to defeat a libel per se claim. Under the innocent construction rule, a statement that is reasonably capable of an innocent construction cannot be considered defamatory per se. A court determines whether a statement is capable of an innocent construction as a matter of law. Courts are not required to strain to interpret a statement innocently, but if a statement is reasonably subject to both a libelous and innocent interpretation, the innocent interpretation wins out and the court must dismiss the libel per se claim.

The Chicago Defamation Slander and Libel Lawyers attorneys at Lubin Austermuehle have litigated defamation cases for decades. We defended and prosecuted a wide variety of libel cases including defending a large contributor to the Loyola University basketball program for allegedly defaming the coach and causing him to be terminated, a dissatisfied consumer who systematically attacked a dishonest used car dealer with negative reviews and a top executive for criticizing his Fortune 100 employer in a press release following his wrongful termination. You can read here a federal court ruling where we obtained dismissal of a libel per se claim with the innocent infringer defense. Here is an arbitration ruling where our lawyers following an evidentiary hearing proved that our client's scores of videos posted on YouTube were protected speech and opinions which the First Amendment protected because at worst our client had made a few minor factual errors and was entitled to express a negative opinion of a used car dealer who had been repeatedly found guilty of consumer fraud in other lawsuits. These cases obtained a lot of press coverage. You can look at those news stories on our press page here and here.

We also represent plaintiffs in libel cases. We forced a defendant who had attacked our client one of the largest diamond wholesalers in the world to provide a written apology and retraction as part of a settlement of a $16 million libel per se suit we brought in federal court in Chicago. You can learn more about that lawsuit here.

Our Chicago Defamation Slander and Libel Attorneys are committed to fighting for our clients in the courtroom or when we negotiate a settlement. Located in Chicago, Wilmette and Elmhurst, Illinois, we have successfully litigated internet defamation, and cyber smear cases for clients all over the Chicago area. To set up a consultation with one of our lawyers, you can contact us online or call us on our toll-free number at 630-333-0333.

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