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Think Before You Speak: Avoid Becoming a Defendant in a Defamation Lawsuit

Most people are familiar with the general concept of defamation. Far too often, however, people assume that defamation applies only to newspapers or other media outlets. While it is true that the most high-profile cases involve news organizations, you can find yourself as a defendant in a defamation lawsuit in much more mundane situations. In fact, the circumstances in which a defamation claim can arise are more common than many people might think, particularly in the context of business relationships. 

In general, the law considers a statement to be defamatory if it tends to cause such harm to the reputation of another that it lowers that person in the eyes of the community or deters third persons from associating with him or her. Therefore, to proceed on a suit for defamation, an individual need only allege that the defendant made a false statement about him or her, that the defendant made an unprivileged publication of that statement to a third party, and that the publication caused damages to the plaintiff in that his or her reputation was harmed.

Although it might seem difficult for a plaintiff to show that the false statement caused damage, in many circumstances the law will actually assume that there was damage to the individual's reputation just because of the nature of the statement. This concept is referred to in the law as "defamation per se," meaning the law considers it obvious that damage to reputation will occur if a statement is made about a person that falls within a certain category of statements. In Illinois, statements falling within any one of the following five categories constitute "defamation per se": (1) those imputing the commission of a criminal offense; (2) those imputing infection with a loathsome communicable disease; (3) those imputing an inability to perform or want of integrity in the discharge of duties of office or employment; (4) those that prejudice a party or impute lack of ability in the party's trade, profession or business; and (5) those imputing adultery or fornication.

As should be clear, certain of these categories are very broad. For example, imputing the inability to perform the discharge of employment, as well as imputing lack of ability in the party's business, can cover a broad spectrum of statements made about another person. Likewise, statements can be made that impute the commission of a crime, even though the individual making the statement did not intend to injure the reputation of the other person.

A Case Study in What Not to Do

A real-life example demonstrates this point. An Illinois couple purchased a piece of land and hired a general contractor to build a home on the property. At the general contractor's recommendation, the couple engaged an interior designer to assist in the purchase of furniture, and worked with her for a period of months while the new home was being built. During that time, the couple paid significant money to the interior designer, both for her services and for furniture that she claimed to have purchased for the home. When the couple was finally ready to take possession of their new home, they found themselves with no furniture because they could not locate the interior designer.

After numerous unsuccessful attempts to contact the interior designer, the couple looked for other avenues to get their furniture. First, they filed a police report complaining that the interior designer had taken their money and had not delivered any furniture. Second, the husband attempted to contact a business acquaintance of the interior designer. When the business acquaintance did not answer the phone call, the husband left a voicemail message stating that that the interior designer "had taken $45,000" of their money and "skipped town," and that there was "a warrant for her arrest on fraud charges."

The interior designer was later arrested, but the Cook County State's Attorney's Office denied a request that charges be filed. Shortly thereafter, the interior designer filed her own lawsuit in federal court claiming false arrest against the police officers, and claiming defamation against the husband as a result of the voicemail message he left for her business acquaintance.

The husband moved to dismiss the defamation claim, asserting that the statement made in the voicemail message did not constitute "defamation per se." The court, however, denied the motion to dismiss, stating that "[t]he alleged statement made by [the husband] that the [interior designer] had ‘skipped town' along with an explanation from [the husband] that [the interior designer] had taken a large sum of money and was being pursued by the police, could reasonably have been interpreted by the [acquaintance] to convey the fact that [the interior designer] had stolen money and had fled town to avoid apprehension by the police." The court thus allowed the interior designer to pursue her claim for defamation.

Although the designer will ultimately have to prove that the defamatory statements were false before she can recover any damages, the reality for the husband is that he is embroiled in an expensive federal lawsuit merely because he left the voicemail message for the acquaintance. Had he simply allowed the police to investigate his complaint, he would have avoided altogether a lawsuit accusing him of defamation. In other words, regardless of whether his statement was true, and regardless of whether his intention was merely to locate the interior designer rather than damage her reputation, the message exposed the husband to being sued for defamation.

Lawyers Also Beware

Lawyers who are not careful can also expose themselves to claims for defamation, as evidenced by a very recent case from the Illinois Appellate Court. In Missner v. Clifford, the defendant, attorney Robert Clifford, had filed a complaint on behalf of a client against David Missner and other attorneys accusing them of having forged an affidavit during the course of an underlying bankruptcy proceeding in federal court. Clifford then issued a press release to the Chicago Tribune that repeated the same allegations contained in the complaint.

In return, Missner filed a lawsuit against Clifford for the defamatory statements made in the press release. He could not, however, allege that the statements made by Clifford in the actual complaint were defamatory because attorneys have an absolute privilege for any statements made in the course of representing a client, so long as they are made in furtherance of the lawyer's duties on behalf of his or her client. Missner asserted that the statements made to the press did not fall within the absolute privilege because they were not necessary to Clifford's representation of his client. The court agreed, and held that Clifford's statements in the press release were not privileged, even if the very same statements were privileged when made in the complaint filed in court.

Once again, like the husband in the case described above, Clifford likely did not believe that he was exposing himself to a defamation claim. Had Clifford not issued the press release, and instead simply represented his client in the litigation, he would have avoided a defamation suit. However, because he made the statements to third parties through the press release, he is now faced with the costly and time-consuming defense of a defamation claim.

Lessons Learned

Whether you are a lawyer or an individual engaged in a business relationship, the lesson to be learned is simple. Be very careful before making accusations about another person to a third party that could arguably impute a crime or the lack of integrity in that individual's profession. While you might believe that your statements are true, making them to a third party could get you sued for defamation. Therefore, always think before you speak.

© 2023 Much Shelist, P.C.National Law Review, Volume , Number 310

About this Author

Martin J. O’Hara, Litigation, Dispute Resolution Lawyer, Much Shelist Law Firm

Marty focuses his practice on the defense of attorneys and law firms in ethical and legal malpractice matters that generally arise from commercial engagements. He has represented an AmLaw 50 firm for over 20 years, offering practical advice and efficiently handling a range of litigation and ethical matters.

Recently, Marty represented a law firm alleged to have aided and abetted a breach of fiduciary duty by a trustee. He also advises attorneys or groups of attorneys who are looking to laterally transfer from one law firm to another.

Marty is frequently called on as an expert...