An Illinois Appellate Court recently affirmed a ruling dismissing the defamation claims filed by a manager of a homeowners association stemming from comments made about him during a meeting of the HOA. The Court ruled that the manager could not maintain his claims because the allegedly defamatory comments were protected from liability by qualified privilege.
The plaintiff in the case, Philip Kiss, managed the HOA from 2010 to 2016 and also served as its attorney during this time. The board relieved Kiss of his duties in 2016. In November 2017, one of the board members, Ellen Sheldon, stated during a meeting of the HOA, “I don’t want a person who comes to a homeowners meeting drunk managing our … association and he came drunk in 2015.” In response to a question asking how she knew Kiss was drunk, Sheldon said, “because he stood right at my face and he breathed at my face which was unbelievable[.] I wanted to pass out. And he could not speak clearly. [T]he man did not belong managing us[.] [T]hank God he’s not anymore.”
Kiss sued both the HOA and Sheldon alleging defamation and false light invasion of privacy. The defendants moved to dismiss the complaint arguing, in part, that the statements were protected by qualified privilege because they were made during a board meeting of the HOA. After several amendments to Kiss’s complaint, defendants again sought to dismiss the claims based on qualified privilege. The trial court granted the defendants’ motion and dismissed the claims with prejudice. Kiss appealed arguing that the trial court improperly dismissed his claims and refused to allow him to re-plead his claims for a fifth time.
On appeal, the Court recited the minimum elements that Kiss needed to plead in order to state a claim for defamation: (1) the defendant made a false statement about the plaintiff; (2) published to a third party; (3) that was unprivileged; and (3) that caused damages. After reciting the general elements of a defamation claim, the Court homed in on the element at issue: that the statement was unprivileged.
The Court began its analysis by explaining that there are two types of privilege: absolute privilege and qualified (or conditional) privilege. Qualified privilege in Illinois, the Court explained, is based on the policy of protecting honest communications of misinformation in certain circumstances in order to facilitate the availability of correct information. To determine if a qualified privilege existed to protect the allegedly defamatory statement from prosecution, the court could look only to the occasion itself for the communication and was required to determine as a matter of law and general policy whether that occasion created some recognized duty or interest to make the communication so as to make it privileged.
If a court finds that a qualified privilege exists, the Court explained, the plaintiff may overcome it only by establishing that the defendant made the statement with actual malice, that is while knowing the matter was false or displaying a “reckless disregard” as to the falseness of the matter. Reckless disregard, the Court noted, occurs when the defamatory statement is published despite a high degree of awareness of probable falsity or entertaining serious doubts as to its truth. The Court went on to explain that a plaintiff may not establish actual malice simply by making the bare allegation that a defendant acted maliciously and with knowledge of the falsity of the statement. Instead, the plaintiff must allege facts from which a court may infer the existence of actual malice.
Turning to the facts in the case, the Court determined that the occasion at issue was the HOA meeting during which Sheldon made the allegedly defamatory statements. The Court also noted that Sheldon, a board member, made the statements in her official capacity while discussing the business of the HOA. This was sufficient, the Court concluded, to establish that the statements were covered by qualified privilege.
The Court next turned to the issue of whether Kiss had overcome the qualified privilege protecting the allegedly defamatory statements. The Court concluded that he had not. As the Court pointed out, Kiss had not pled facts showing that Sheldon acted maliciously and with knowledge of the falsity of her statements. He also failed, the Court noted, to show that Sheldon had any awareness of the probable falsity of the statements or that she had serious doubts as to their truth. Accordingly, the Court held that Kiss failed to establish the actual malice needed to overcome the asserted privilege. This not only doomed his defamation claims but also his false light invasion of privacy claims which were shielded from liability by the same privilege.
The Court’s full opinion can be found online here.
Our Elmhurst and Oakbrook Terrace libel and defamation attorneys represent and prosecute claims on behalf of individuals throughout the Chicagoland area and also businesses who have been unfairly and falsely criticized by consumers and competitors in defamatory publications in the online and offline media. We have successfully represented businesses who have been the victim of competitors setting up false rating websites in order to publish defamatory content about our business clients. Beyond defamation law, our Chicago and Cook County defamation, libel, and slander lawyers represent family businesses and enterprises of all sizes in a variety of commercial disputes, including disputes among partners and shareholders as well as lawsuits between businesses and consumer rights, auto fraud, and wage claim individual and class action cases. In every case, our goal is to resolve disputes as quickly and successfully as possible, helping business clients protect their investments and get back to business as usual. We serve clients throughout Illinois and the Chicagoland area. You can contact us online here or call us on our toll-free number at 833-306-4933 or locally at 630-333-0333.