CBA Record October 2018

Y O U N G L A W Y E R S J O U R N A L

business; otherwise there can be no harm to the business’ reputation. Aroonsakul v. Shannon, 279 Ill. App. 3d 345, 351 (2nd Dist. 1996). In this scenario, this review named Fake Corp. If the review hadn’t named Fake Corp. but identified it as a business located in Fake Corp.’s neighborhood, Fake Corp. would have to evaluate whether, on the face of the publication, a third party would reason- ably have understood that the statement was about Fake Corp. (c) Publication. An allegedly defamatory remark is “published” when it is communi- cated to someone other than the defaming party. Girsberger v. Kresz, 261 Ill.App.3d 398, (1st Dist. 1993). Using the “Share” or “Repost” feature could be viewed as publication of a false statement even when the sharer is not the original speaker. In the Fake Corp. example, a post on Yelp clearly constitutes publication. (d) Damages. Establishing damages from a defamatory statement is difficult because the response to the statement such as loss to a business’ reputation often occurs offline. The business can lose potential customers and not even realize the loss occurred. But damage to the business can be presumed depending the type of defamatory review. In Illinois, there are two types of defa- mation, defamation per se and defamation per quod. In defamation per se, damages are presumed because the statement is harmful on its face. Green v. Rogers, 234 Ill.2d 478, 491 (2009). Defamation per se applies to statements that imply (i) a commission of a crime; (ii) an inability to perform or lack of integrity in the performance of its services; or (iii) inability in one’s trade, profession, or business. Id. at 491-492. However, if a statement can be reason- ably be interpreted innocently in context and with any implications arising from the words’ natural meaning, the statement is no longer defamation per se. Id. at 499. With our Yelp example, the online review can be construed as defamation per se if Flimsy Wood is illegal or has been known

to cause health problems as opposed to solely being of a lower quality. Damages from defamation per quod are not presumed. A business must demon- strate calculable and measures damages, such as lost profit, deriving directly from the statement. Kurczaba v. Pollock, 318 Ill. App. 3d 686, 693 (1st Dist. 2000). A claim for defamation per quod considers the context surrounding the statements or other extrinsic evidence to demonstrate the defamatory nature because it is not clear on the statement’s face. For example, Fake Corp. may need to investigate the context of using Flimsy Wood in its products to demonstrate the defamatory nature of the statement. Further, Fake Corp. will need to determine whether any customers were actually lost due to this statement. Question 2: Is the defamatory online review protected given other circumstances? (a) First Amendment. The first line of defense for an online reviewer is the First Amendment and its protection of one’s right to speech and to petition. The First Amendment extends to an online reviewer’s opinion of a business, so the test is whether the online review can reasonably be inter- preted as stating an actual fact. Under this test, the statement (1) must have a precise and readily understood meaning, (2) must be verifiable, and (3) must constitute fac- tual content in its literary or social context. Imperial Apparel, Ltd. v. Cosmo’s Designer Direct, Inc., 227 Ill. 2d 381, 398 (2008). If Fake Corp. review removes the reference to the lawsuits, the term “Flimsy Wood” could be a fictional product referenced in a movie and thus would constitute an opinion. (b) Privilege. An online review may be privileged considering the audience and the speaker, which removes the illegality of the statement. Qualified privilege gener- ally protects news organizations reporting statements by law enforcement or govern- ment officials. But a qualified privilege can extend to defamatory statements made

Attorneys must act as first-responders and counsel to these business owners because a poor response to a negative review can be devastating for the business. The first step is to determine whether the review is illegal (i.e., defamatory) or simply negative. Second, when a review is defama- tory, context surrounding the review will determine if the reviewer or the content is legally protected. Finally, the response to the defamatory review should be con- sidered in terms of the practicalities and options available in the situation. “Slander” (spoken statements) and “libel” (written statements) fall under the umbrella of defamation in Illinois. A defamatory statement is: (a) a false statement (b) of or concerning person or corporation (c) published to a third party (d) that causes damages to the person or corporation. Moore v. People for Ethical Treatment of Animals, Inc., 402 Ill. App. 3d 62, 68 (1st Dist. 2010). For purposes of understanding a defam- atory statement, consider the following hypothetical online Yelp review for each element: “Fake Corp. uses shoddy materials such as the product called Flimsy Wood, which is the subject of a bunch of products liability lawsuits.” (a) False Statement. Under Illinois law, the speaker has the burden to establish the review to be “substantially true” as a defense to defamation. Id. Essentially, the speaker must show the “gist” or the “sting” of the statement is true. With our hypothetical review, we can assume that Flimsy Wood is the subject of products liability lawsuits. So, Fake Corp. must be sure it does not use Flimsy Wood or products similar to Flimsy Wood because the review would be substantially true and, thus, would no longer be defamatory. (b) Of or Concerning Corporation. A false online review must concern the business or reasonably understood as referring to a Question 1: Does the online review constitute defamation?

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