August 8, 2006

Illinois Supreme Court Rules Press Absolutely Protected by Privilege

Holland & Knight Newsletter
Trisha M. Rich

The legal protection for journalists who report on government records that a libel plaintiff claims are false cannot be defeated by allegations of malice, a recent Illinois Supreme Court decision held.

In Solaia Technology, LLC, et al. v. Specialty Publishing Company, the state’s highest court reconciled conflicting opinions in the lower appellate courts and held that the privilege is absolute. That means the protection of law – known as the “fair report privilege” – remains ironclad even against allegations that a media defendant acted with actual malice in reporting false statements made during an official proceeding. According to the court, the privilege will apply so long as the coverage is a fair and accurate account of the proceeding.

Solaia Technology, its attorney Raymond Niro and his law firm sued Specialty Publishing Company for libel over articles published in Start (now titled Start-IT) magazine. The articles reported on lawsuits filed by Solaia against several manufacturers for patent infringement, and a related lawsuit against Solaia filed by Rockwell Automation. Start prominently quoted Rockwell’s harshly worded complaint. As a result of that coverage, much of which was critical of Solaia and Niro, the plaintiffs in the libel lawsuit charged that Start, whose target readership includes manufacturing company executives, made false statements which amounted to defamation. The defendants responded that the statements at issue were not defamatory, and that several of the statements were covered by the fair report privilege.

The Illinois Supreme Court, in a 5-1 ruling, sided largely with the defendants and joined the growing number of states that hold the fair report privilege is absolute and cannot be defeated by allegations of malice. The decision for the court written by Justice Thomas Fitzgerald followed a line of earlier cases that discuss four bases for the privilege’s application to reports on litigation:

1. the filing of the complaint itself is a public act

2. the privilege serves the public’s interest in observing the judicial system

3. a judicial limitation on the privilege would not necessarily prevent unfair or untrue statements from coming out in the litigation and thus being reported on at a later date

4. and finally, because the public has a sophisticated understanding of the court system, it is thus capable of evaluating information that has been gleaned from a complaint

The majority also held that the privilege attaches the moment a complaint is filed in court, even when no other action has been taken. The court closed by stating that “freedom of the press is illusory if a cloud of defamation liability darkens the media’s reports of official proceedings.” It sent the case back to the trial court to determine whether some statements made by Start may have been inaccurate and outside the privilege.

Justice Charles Freemen concurred in part of the opinion, but he dissented from the holding of an absolute privilege. Freemen argued that the decision does not adequately provide individuals with protection against assaults to their reputations or character, which he said outweighs the public interests in being provided with information regarding court proceedings or official meetings. Freemen’s opinion argued that an absolute privilege has the potential for abuse, because it could allow individuals to file complaints that contain defamatory statements, which could then be reported by media outlets who would not be liable to anyone. Freemen argued that because of these reasons, the privilege should apply only once the court has taken some official action on the proceeding, at which point the media would have a more complete picture of the litigation.

For more information, e-mail Trisha M. Rich at or call toll free, 1.888.688.8500.

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