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. Defendant spent nearly five years developing her database which contained pedigree data on nearly 24,000 dogs. Plaintiffs meanwhile, developed a software program targeted to the dog breeding community. In connection with the software launch, plaintiffs also created a Data Mining Robot, a web browser that scanned and copied information from the Internet. Plaintiffs’ Robot scoured defendant’s site, “harvested” the pedigree data and copied it into plaintiff’s software program which was then sold to the public. Defendant, furious that the plaintiffs (via the Robot) copied her meticulously compiled data without her permission, took to the ‘Net and voiced her ire at plaintiffs’ practices. When defendant accused plaintiffs of stealing her 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.
Plaintiffs’ defamation claim was based on several statements made by defendant: that plaintiffs were thieves who stole defendant’s information, plaintiffs were “deceitful and unethical”, plaintiffs “hacked” into defendant’s website, and plaintiffs removed data from defendant’s pedigree site and infringed defendant’s copyrights. The challenged statements were posted by defendant on her website, in emails and in electronic message boards serving the dog breeding community. Tamburo, *7-8. Plaintiffs alleged that defendant’s venomous posts caused plaintiffs to fall into disrepute in the business community.
Defamation: The Elements and Defenses
In Illinois, a defamation plaintiff must allege a false statement about the plaintiff, that’s published to a third party and that causes damage to the plaintiff. Id., *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. Id. 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.” Tamburo, *8.
The Qualified Privilege Defense – Can It Be Abused?
Another defamation defense is the qualified privilege defense. It applies where a statement implicates a legitimate interest of the speaker/publisher or an interest of the recipient of the statement/publication. Tamburo, *10. A prototypical example is a false statement that involves matters of important public concern. The qualified privilege is question is one of law for the court. To overcome the qualified privilege, 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. Tamburo, *11. The reckless disregard standard for abusing the qualified privilege defense is further defined as the defendant “entertained serious doubts” about the truth of the statement yet failed to properly investigate its truth. Id.
The qualified privilege can also be abused where a defendant fails to limit the scope of the statement and transmits it to unnecessary parties. Id., Kuwik v. Starmark Star Mktg, 156 Ill.2d 16 (1993). Editorial/Sarcasm alert!: it’s sort of like that co-worker that just LOVES to copy ten quadrillion e-mail recipients on every e-mail for no reason other than to get you in trouble. I’m told there are people out there that do this! (gasp! cough).
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 sans permission and later sold it for a profit. Tamburo, *9 (truth is an absolute defense to defamation).
The statements were also protected by the qualified privilege defense since defendant had a legitimate interest in protecting her time and effort investment in compiling the dog pedigree data and there was also a public interest in the legality of people (or robots) harvesting website information without permission. Tamburo, *10. 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. Id., *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. Tamburo, *15-16.
Tortious Interference Claims
The Court also struck plaintiff’s tortious interference claims which were based on the allegation that defendant’s vitriolic web postings caused current and prospective clients to sever business relationships with the plaintiffs. The Court rejected these claims since plaintiffs could point to no specific clients or contracts that didn’t materialize as a result of defendant’s statements. In addition, the plaintiffs couldn’t establish that they had a reasonable expectation of entering into a business relationship with a specific third party. Tamburo, *7.
Case Lessons: It’s hard to prove defamation. A defamation defendant has a substantial and varied arsenal of defenses at his disposal 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’s also 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. Lastly, to prevail on a tortious interference with prospective economic advantage claim, the plaintiff must plead and prove a business expectancy with a specific third party. Nebulous claims that a defendant prevented a plaintiff from consummating business deals with unidentified persons won’t suffice.