Triage Of Defamation Cases

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Triage is a French term which refers to the allocation of scarce resources to those who will benefit most from those resources. This presentation is meant to assist a practicing attorney in allocating a scarce resource (his time) to those who will benefit the most (clients with meritorious cases).

As the Supreme Court of the State of Illinois acknowledged, the law of defamation in general has spawned a morass of case law in which consistency and harmony have long ago disappeared. Any practicing attorney who does not regularly handle defamation cases will necessarily have to understand the existing case law to successfully handle such a claim. The following is an outline of the matters that should be considered before the decision is made to invest a great deal of time in a defamation case.

Nature of the Tort of Defamation

A statement is defamatory if it impeaches a person's reputation and thereby lowers that person in the estimation of the community or deters a third party from associating with that person. Kolegas v. Heftel Broadcasting Corp., 154 Ill.2d 1, 607 N.E.2d 201, 180 Ill.Dec. 307 (1992). In order to make out a claim for defamation, a plaintiff must set forth sufficient facts showing that the defendant made a false statement concerning the plaintiff, that there was an unprivileged publication of the defamatory statement to a third party by the defendant, and that the plaintiff was damaged. Myers v. The Telegraph, 332 Ill.App.3d 917, 773 N.E.2d 192, 265 Ill.Dec. 830 (5th Dist. 2002).

At common law, there were four categories of statements that were considered "defamatory per se." These statements would give rise to a cause of action for defamation without a showing of special damages. The categories are:

1. Words that impute the commission of a criminal offense;

2. Words that impute infection with a loathsome communicable disease;

3. Words that impute an inability to perform or want of integrity in the discharge of duties of office or employment; and

4. Words that prejudice a party, or impute lack of ability, in his or her trade, profession or business.

Bryson v. News America Publications, Inc., 174 Ill.2d 77, 672 N.E.2d 1207, 220 Ill.Dec. 195 (1996).

The Slander and Libel Act has added to these classifications by providing that false accusations of fornication and adultery are actionable as a matter of law. 740 ILCS 145/1 et seq.

If a defamatory statement does not fit within the categories listed above, it still may state a cause of action for defamation per quod. A cause of action for defamation per quod may be brought in two circumstances. First, a per quod claim is appropriate where the defamatory character of the statement is not apparent on its face and resort to extrinsic circumstances is necessary to demonstrate its injurious meaning. To pursue a per quod action in such circumstances, a plaintiff must plead and prove extrinsic facts to explain the defamatory meaning of the statement. Bryson, supra. Second, a per quod action is appropriate where a statement is defamatory on its face but does not fall within one of the limited categories of statements that are actionable per se. In this type of per quod action, the plaintiff need not plead extrinsic facts because the defamatory character of the statement is apparent on its face. Bryson, supra.

In any per quod action, the plaintiff must plead and prove special damages to recover.

Although not strictly defamation, there may be a causes of action for false statements that relate to property or services. If one publishes a false and malicious statement which disparages title to real property and that statement results in special damages, one has a cause of action for slander of title. Whildin v. Kovacs, 82 Ill.App.3d 1015, 403 N.E.2d 694, 38 Ill.Dec.463 (1st Dist 1980).

Defenses to Claims for Defamation

While it is relatively easy to state the elements of defamation, the real difficulty arises when one has to consider the defenses to a defamation claim. These defenses are numerous and sometimes difficult to comprehend given the confusion that appears in some of the appellate decisions. When faced with a potential client complaining of defamation, one should consider the following list of defenses to determine whether a case has merit.


As every first year law student knows, truth is a defense to a defamation action. However, in most cases, an alleged defamatory statement will not contain the truth, the whole truth and nothing but the truth. Most likely, some of the alleged defamatory statement will not be totally accurate. However, courts have said that "substantial truth" is sufficient to allow a defendant to prevail A defendant need only show the truth of the "gist" or "sting" of the defamatory material. Cianci v. Pettibone Corp., 298 Ill.App.3d 419, 698 N.E.2d 674, 232 Ill.Dec. 583 (1st Dist. 1998).

In Lemons, a shoplifter pulled a knife when two managerial employees attempted to keep him from leaving the store. He slashed at the arm of one of the employees and cut through the shirt and caused a minor wound on the arm. The other employee suffered a minor cut on his hand when he grabbed the blade while trying to take the knife away from the plaintiff. The newspaper published an article that stated plaintiff had "stabbed" the two employees, that he had been found guilty of stabbing two "security guards" and that plaintiff had received a 15 year sentence for knifing guards. Although the plaintiff contended that the articles were inaccurate and false because the employees were not stabbed and they were not security guards, the court found the newspaper articles to be substantially true and dismissed the plaintiff's claim. Lemons v. Chronicle Publishing Company, 253 Ill.App.3d 888, 625 N.E.2d 789, 192 Ill.Dec. 634 (4th Dist. 1993).

While substantial truth is normally a question for the jury, where no reasonable jury could find that substantial truth could not be established, the question is one of law. Therefore, the trial court can dismiss a claim based on the substantial truth defense without an evidentiary hearing. Cianci, supra; Lemons, supra.


The Illinois Supreme Court and the Supreme Court of the United States have both held that statements of opinion are not actionable in a defamation action. Milkovich v. Lorain Journal Co., 497 U.S.1, 110 S.Ct. 2695, 111 L.Ed.2d 1 (1990); Bryson, supra.

However, the difficulty in evaluating this defense is determining what constitutes an opinion. In Milkovich, the Court rejected what it called "the creation of an artificial dichotomy between 'opinion and fact'." It refused to create a wholesale defamation exemption for anything that might be labeled "opinion." Milkovich, 497 U.S. at 18. For example, simply stating that "In my opinion, Jones is liar" will not prevent a plaintiff from having a valid cause of action.

The test to determine whether a defamatory statement is constitutionally protected is a restrictive one. A statement is protected under the First Amendment only if it cannot be reasonably interpreted as stating actual facts. Milkovich, supra; Bryson, supra. In Bryson, the defendant had allegedly called the plaintiff a "slut." The court needed to determine whether a reasonable fact finder could conclude that the statement was an assertion of fact or an opinion. Bryson found that the clear impact of the statement was that the plaintiff was, in fact, sexually promiscuous. The court said this was not the sort of loose, figurative or hyperbolic language that would negate the impression that the writer was seriously maintaining that the plaintiff was unchaste. The court found the assertion sufficiently factual to be susceptible to being proven true or false. Bryson, supra.

Compare Bryson to the Dubinski case. In Dubinski, plaintiffs brought an action for defamation because defendants allegedly called the plaintiff a "crook" in front of United Airline pilots and their wives. Although the trial court upheld Dubinski's defamation count, the appellate court reversed, holding that the defendant's statement that Dubinski was a "crook" was not actionable because it was not made in any specific factual context. The court found that on the totality of the circumstances, it must conclude that the general statement, in the absence of factual context, was a statement of opinion, not objectively verifiable and devoid of factual content. Dubinski v. United Airlines Master Executive Council, 303 Ill.App.3d 317, 708 N.E.2d 441, 236 Ill.Dec.855 (1st Dist. 1999).

The decisions in Bryson and Dubinski point out the difficulty of determining whether a statement is one of fact or of opinion. It is very difficult to understand why one statement was actionable and the other was not. However, even though it is difficult to make the distinction between fact and opinion, every effort should be made to do so prior to filing any claim.

Innocent Construction

If a statement that appears to be defamatory can be innocently construed, a defendant can escape liability. Again, the rule is simple to state but difficult to implement. The Illinois Supreme Court in Mittelman attempted to harmonize Illinois decisions prior to 1990. Mittelman v. Witous, 135 Ill.2d 220, 552 N.E.2d 973, 142 Ill.Dec.232 (1990). The Mittelman court began its analysis by restating the modified rule that it had previously announced in Chapski v. Copley Press:

"A written or oral statement is to be considered in context, with the words and the implications therefrom given their natural and obvious meanings; if, as so construed, a statement may reasonably be innocently interpreted or reasonably be interpreted as referring to someone other than the plaintiff it cannot be actionable per se."

Chapski v. Copley Press, 92 Ill.2d 344, 442 N.E.2d 195, 65 Ill.Dec.884 (1982).

The Mittelman court stated that the modified innocent construction rule, by its terms, applies only to per se actions, those which stand or fall upon the import of the statement. The court found no good reason to extend the rule to per quod actions. The Court said a plaintiff could always seek to establish a per quod action in an attempt to avoid the innocent construction rule by utilization of extrinsic facts to establish the defamatory nature of the statement that was not otherwise defamatory on its face.

The Court stated that if a statement is reasonably capable of a non-defamatory interpretation, given its verbal or literary context, it should be so interpreted. There is no balancing of reasonable constructions. The rigorous standard of the modified innocent construction rule favors defendants in per se actions in that a non-defamatory interpretation must be adopted if it is reasonable. A tougher standard is warranted because of the presumption of damages in per se actions. Mittelman, supra.

A local example of the application of the Innocent Construction Rule occurred in a case that was recently pending before a law judge of the Tenth Judicial Circuit. Plaintiff had received notice from her employer to appear for a drug test but plaintiff failed to appear for that test. She was thereafter terminated. Allegedly a supervisor told other employees that plaintiff had been terminated because she "failed" a drug test. Defendant argued that the statement, if actually made, could be innocently construed and that the court should dismiss the plaintiff's action. Defendant argued that not only do dictionary definitions for "fail" include the concepts of neglect or omission, but also that failing to go to a drug test results in a failure of that test. The presiding judge found that statement was capable of innocent construction and dismissed the claim.

Fair Reporting Privilege

The Restatement (Second) of Torts Section 611, provides as follows: "The publication of defamatory matter concerning another in a report of an official action or proceeding * * * is privileged if the report is accurate and complete or a fair abridgement of the occurrence reported."

This section of the Restatement was adopted by the Illinois Supreme Court in Catalano v. Pechous, 83 Ill.2d 146, 419 N.E.2d 350, 50 Ill.Dec.242 (1980).

Although the literal language of the Restatement limits the privilege to reports of "proceedings," it has been extended to the statements of law enforcement officials in their official capacities.

Under this privilege, the news media may reprint defamatory information reported by another in the context of public records or proceedings. The privilege protects news accounts based on the written and verbal statements of governmental agencies and officials made in their official capacities. Myers v. The Telegraph, 332 Ill.App.3d 917, 773 N.E.2d 192, 265 Ill.Dec. 830 (5th Dist. 2002)

For the privilege to apply, the news media is obligated to summarize the defamatory matter in a fair and accurate manner. The accuracy of the summary, not the truth or falsity of the information being summarized, determines whether the privilege applies. Myers, supra. A plaintiff can defeat this affirmative defense of reporting privilege if he can show that the defamatory matter does not appear in the official record or proceedings. Myers, supra. In the case where an official has made oral statements, a plaintiff may get his case to trial by showing that the report did not accurately summarize the statement of the official. Maple Lanes, Inc. v. News Media Corporation, 322 Ill.App.3d 842, 751 N.E.2d 177, 256 Ill.Dec.124 (2nd Dist. 2001).

Litigation Privilege

The litigation privilege provides immunity from civil suit for defamatory statements made preliminary to or during the course of litigation so long as the defamatory matter is pertinent to the litigation. Defend v. Lescelles, 149 Ill.App.3d 630, 500 N.E.2d 712, 102 Ill.Dec.819 (4th Dist. 1986). The privilege is based on public policy. The Defend court stated that it was uniformly recognized that the judicial system would best be served if persons with knowledge of relevant facts could report those facts to the court without fear of civil liability. Illinois courts have adopted Section 587 of the Restatement (Second) of Torts which states:

"A party to a private litigation or a private prosecutor or defendant in a criminal prosecution is absolutely privileged to publish defamatory matter concerning another in communications preliminary to a proposed judicial proceeding, or in the institution of or during the course and as a part of, a judicial proceeding in which he participates, if the matter has some relation to the proceeding."

This absolute privilege is virtually insurmountable for a plaintiff. Illinois courts have favorably recited comment (a) to Section 587 of the Restatement which provides that a party to private litigation is protected from liability for the defamation irrespective of his purpose in publishing the defamatory matter, of his belief in the truth or even his knowledge of its falsity. Hence, malice will normally not defeat the privilege. The question of whether the privilege exists is a question of law.

The requirement that statements made in a judicial proceeding be pertinent or relevant is not strictly applied. The privilege attaches even where the defamatory statement is not confined to specific issues related to the litigation and all doubts should be resolved in favor of a finding of pertinency. Malevitis v. Friedman, 322 Ill.App.3d 1129, 753 N.E.2d 404, 257 Ill.Dec. 209.

The litigation privilege has been applied to statements made in administrative proceedings. The absolute privilege applies during quasi judicial proceedings and encompasses testimony given before administrative agencies. It even includes communications to administrative agencies, when the agencies are performing a judicial function. Hartlep v. Torres, 324 Ill.App.3d 817, 756 N.E.2d 371, 258 Ill.Dec.389 (1st Dist. 2001).

Tort Immunity

Illinois statutes specifically provide protection for local public entities in actions based on liable or slander. The Local Government Tort Immunity Act provides as follows:

"A local public entity is not liable for injury caused by any action of its employees that is libelous or slanderous or for the provision of information either orally, in writing, by computer or any other electronic transmission, or any book or other form of library material." 745 ILCS 10/2-107.

As an example, individual members of the Board of Education, as government officials responsible for direction of a school superintendent, were privileged from liability for alleged defamation of a former superintendent if their statements were made within the scope of their official duties. Roberts v. Board of Education, 25 F.Supp.2d 866 (N.D. Ill. 1998).

Qualified Privilege

If none of the defenses listed above are available to a defendant, that defendant may allege that he has a qualified privilege. The court may decide the issue, as a matter of law, as to whether a qualified privilege exists in a certain situation.

The Illinois Supreme Court has found that a privilege exists when:

1. A statement is made in good faith by the defendant;

2. The defendant has an interest or duty to uphold;

3. The statement is limited in its scope to that purpose;

4. It is made in a proper occasion; and

5. The statement is published in a proper manner to the proper party.

Kuwik v. Star Marketing & Administration, Inc., 156 Ill.2d 16, 619 N.E.2d 129, 188 Ill.Dec.765 (1993).

In Kuwik, letters sent by a health insurer to the insured and the Department of Insurance with respect to coverage of expenses of a chiropractor were qualifiedly privileged under defamation law.

The inquiry regarding qualified privilege is a general one, requiring a court to weigh the value of the type of interest to be protected against the degree of damage to be expected from release of the defamatory matter involved. The qualified privilege is meant to effectuate the policy of facilitating a free flow of information so that correct information may ultimately be attained.

In the House O'Lite case, a contractor had written a letter which suggested that the bidding process had been rigged by the plaintiff in favor of the plaintiff's brother-in-law. The appellate court found that the defamatory material involved an interest of social importance - fair bidding on a public contract. The court determined that the interest was important enough to receive direct legal protection and affirmed the dismissal of the plaintiff's claim. Parker v. House O'Lite Corporation, 324 Ill.App.3d 1014, 756 N.E.2d 286, 258 Ill.Dec.304 (1st Dist. 2001). In Achanzar, the court protected an employee's alleged defamatory statement about threats made by the plaintiff. Here, a concerned co-worker made a statement to a supervisor regarding threats made by the plaintiff. The statement was then published only to human resource department personnel charged with investigating incidents relating to worker's safety. The court affirmed a verdict in favor of the defendant. Achanzar v. Ravenswood Hospital, 326 Ill.App.3d 944, 762 N.E.2d 538, 260 Ill.Dec. 879 (1st Dist. 2001).

Although there may be a qualified privilege that applies to a particular situation, if a defendant abuses that privilege by acting recklessly, the privilege may be lost. Such reckless acts include the failure to properly investigate the truth in the matter, to limit the scope of the material, or to publish the materials only to proper parties. Stavros v. Marrese, 323 Ill.App.3d 1052, 753 N.E.2d 1013, 257 Ill.Dec.387 (1st Dist. 2001).

In many respects, the determination of whether a qualified privilege exists is the most difficult defense to evaluate. Basically, the Court looks to the reason for the communication and determines as a matter of law and general public policy whether the reason created some recognized duty or interest so as to make the communication privileged. Kuwik, supra. Basically, a practitioner must determine on a case by case basis whether there is a likelihood that a court will create a qualified privilege.


Statements or acts taken with respect to real and personal property can also result in liability for a defendant. If one maliciously, as defined by common law, publishes defamatory material about the title to real property, an action for slander of title would lie.

Slander of title is a false and malicious publication, oral or written, of words which disparage a person's title to property, resulting in special damages. This can include maliciously recording a document which casts a cloud upon another's title to real estate. Whildin v. Kovacs, 82 Ill.App.3d 1015, 403 N.E.2d 694, 38 Ill.Dec.463 (1st Dist 1980). In slander of title cases, the definition of malice differs from the classic definition used in tort cases. The weight of authority holds that a showing of malice requires knowledge by defendant that the disparaging statements were false or that the defendant was in reckless disregard of this falsity. Pecora v. Szabo, 94 Ill.App.3d 57, 418 N.E.2d 431, 49 Ill.Dec. 577 (2nd Dist. 1981). The courts have defined "reckless disregard" in this context. "Reckless disregard" means a person has a high degree of awareness of the probable falsity of the statement or has serious doubts as to the truth of the statement. Levine v. Chicago Title & Trust, 2002 WL 1350442.

In slander of title cases, one can also seek punitive damages if it can be shown that the statement or the filing of a document was done with malice as defined by such gross negligence as to indicate a wanton disregard of the rights of others. Levine, supra. Cirrincione v. Johnson, 184 Ill.2d 109, 234 Ill.Dec. 455, 703 N.E.2d 67 (1998).

In Levine, the defendant filed in the Recorder's Office an Attorney's Lien against certain farmland located in the Tenth Judicial Circuit. Plaintiff was able to demonstrate that there was no right to any such lien and that the lien was filed with malice. A Tazewell County jury awarded substantial punitive damages against the attorney filing the lien.


The Illinois Supreme Court was correct when it stated that consistency and harmony long ago disappeared from the case law relating to defamation. It is the lack of consistency in many areas, such as the defenses of opinion and qualified privilege, that make the evaluation of defamation claims very difficult. However, to avoid spending precious time on cases that can be defeated by the various defenses discussed here, a thorough preliminary evaluation of the claim needs to be done.