In Tamburo v. Dworkin, 2013 WL 5408540 (N.D.Ill. 2013), an Internet libel case, the Illinois Northern District examined the nature and reach of the qualified privilege and truth defenses to defamation claims filed by a software company against a defendant that made disparaging comments about the company on web message boards.
Facts: Defendant, a professional dog breeder, created a website that provided free canine pedigree information to the dog-breeding community. Plaintiffs created a Data Mining Robot that “harvested” defendant’s site data, packaged it and sold it to the public. Defendant, irate that plaintiffs took defendant’s dog data without permission, accused plaintiffs of stealing the pedigree information. Plaintiffs sued for defamation and tortious interference with contract and prospective economic advantage. Defendant moved to dismiss all counts of the complaint.
Holding: Defendant’s Rule 12(b)(6) motion to dismiss is granted. All claims dismissed.
The plaintiffs alleged that defendant’s venomous posts caused plaintiffs to fall into disrepute in the business community. An Illinois defamation plaintiff must allege (1) a false statement about the plaintiff, (2) published to a third party, (3) that causes damage to the plaintiff. *8.
If its defamation per se (imputing commission of crime, infection with a loathsome disease, incompetence or lack of integrity in employment, adultery or fornication), the plaintiff doesn’t have to show special damages. Common defamation defenses include truth, that the statement is capable of an innocent construction, the statement is an opinion (not factual), and the challenged statement is “rhetorical hyperbole.” *8.
Qualified Privilege Defense
Another defamation defense is the qualified privilege defense. This applies where a statement implicates a legitimate interest of the speaker/publisher or an interest of the recipient of the statement/publication. A prototypical example is a false statement that involves matters of important public concern.
To defeat a qualified privilege defense, the defamation plaintiff must show (a) the statement was false; and (b) the defendant abused the privilege by intentionally publishing the falsehood or by displaying a “reckless disregard” concerning the statement’s truth or falsity. Reckless disregard means the defendant “entertained serious doubts” about the truth of the statement yet failed to properly investigate its truth. *11.
The court held that defendant’s statements that plaintiffs’ principal was unethical and deceitful, while defamatory per se, were still non-actionable statements of opinion protected by the First Amendment. In addition, defendant’s statements that plaintiffs stole (committed “theft”) defendant’s data and was engaged in “hacking” were substantially true: plaintiffs’ web trolling Robot did swipe data from defendant’s website without permission and later sold it for a profit. *9,
The defendant also had a legitimate interest in protecting her time investment in compiling the pedigree information and there was a public interest in protecting private information from unconsented Web harvesting. The Court also found that plaintiffs produced no evidence that defendant abused the qualified privilege by making the theft accusations recklessly or indiscriminately publishing them to unnecessary recipients. *10, 13.
Finally, the Court found that defendant’s statement that the plaintiffs “took” defendant’s data and was “holding it hostage” were not actionable since the former statement was reasonably susceptible to an innocent construction (defendant didn’t literally mean that plaintiff removed the information from defendant’s site) and the latter “held hostage” statement was pure rhetorical hyperbole. *15-16.
Case Lessons: It’s hard to prove defamation. A defamation defendant has a varied arsenal of defenses including truth, innocent construction, opinion vs. fact and rhetorical hyperbole, among others. The qualified privilege defense will apply where a defendant can show that he has a legitimate interest in the subject matter of the statement or if the statement implicates an important public policy interest. In Tamburo, there an undercurrent (my interpretation) of the Court viewing plaintiffs’ practices as unfair: swiping or “scraping” the fruits of defendant’s labor (information compiled over a five-year period and provided free of charge to the pubic) and then trying to profit from it.