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Saturday, September 21, 2019

Can a company accused of 'killing' people sue for defamation? Bar is high, even then, attorneys say

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By John Breslin | Aug 12, 2019


Protection of speech and writing on issues of public interest are a high bar for companies to overcome if they want to sue for defamation when facing criticism and claims of wrongdoing, even if they may be able to prove they are falsely accused of "poisoning" and "killing" people.

Lawyers who practice in the area of internet defamation laws also note that a standing target is often needed before firms can even begin to pursue a case of defamation. Companies do sue for postings on the internet, but it is more likely they will chase down a competitor, a disgruntled employee, or someone linked to the firm who writes disparaging, false statements that they know to be untrue.

Sterigenics, a company that sterilizes medical devices, has a plant in Willowbrook that has been shuttered by order of the state. That action was largely taken in response to public outcry over emissions of ethylene oxide from the plant. Those concerns, in turn, were largely based on a report last summer, from the U.S. Environmental Protection Agency and the federal Agency for Toxic Substances and Disease Registry, which linked the emissions to increased risk of cancer for those near the plant. The Illinois EPA, which ordered the closure of the plant in February, has signed a consent agreement with the company that would allow it to re-open with a new monitoring system, pending court approval.


Daniel Powell | Minc Law

The proposed agreement would allow Sterigenics to again use the chemical at its plant, but the company would first have to create new systems to capture the ethylene oxide gas. The IEPA would have to approve that system with a construction permit.

A Du Page County Circuit Court has allowed four municipalities – Darlen, Burr Ridge, Hinsdale and Willowbrook – to submit a joint filing that is likely to argue against the re-opening of the plant.

Judge Paul Fullerton will rule on whether the consent agreement should stand in late August or early September.

At a recent public meeting, IEPA officials were loudly condemned by local residents and state representatives for their involvement in drawing up the agreement. State Rep. Jim Durkin (R-Western Springs) said he believes the request should be denied because the proposed system has never been used in a plant such as the one in Willowbrook.

According to the Chicago Tribune, Sterigenics director of environmental health Kevin Wagner wrote in a letter to the IEPA that the company looks forward to working with the agency to gain field experience with such systems. Durkin believes this does not go far enough.

The campaign against Sterigenics, which has a plant in Smyrna, Georgia, among other locations, is being conducted largely online, with some describing the emissions as poison that kills people. Among some, this campaign and the allegations against the company have raised the question over when a company can defend itself against what could be defamatory writing and comment.

Daniel Powell, an attorney with Minc Law in Cleveland, with expertise in defamation and the internet, speaking generally rather than specifically about Sterigenics, said the ability of a business to take a case depends on the facts of the case, and on the state. Libel is governed by state laws.

Powell, who noted that the First Amendment is designed to allow people to say what they want, but added that "false statements, especially those made knowingly, could find you in court." Nuance matters, Powell told the Cook County Record, adding that each state is responsible for its own libel law. It matters where a defendant is based and where the plaintiff is based, Powell said.

On a general note, companies do not have emotions, so they cannot include any emotion-related claims in any suit, the attorney said. However, some businesses are "inseparable from their owners." In the case of a supersized company like Amazon, while Jeff Bezos is inextricably linked to the company, it is unlikely he could argue he is personally being attacked. 

"But for some Mom-and-Pop company, most people would understand you are criticizing the owner," Powell said.

A number of the cases Powell has been involved in center on a competitor posting disparaging and false comments online. These could also violate deceptive trade practice statutes.

"Let us assume the comments are false," said Powell. "(A company) can bring suit but may be limited in terms of damages, has to measure their effect on their business, their reputation, and whether they deter people from dealing with that business."

But the bar is high if a corporation believes it is the subject of false allegations, but the comments are made on an issue of public concern and interest. Further, the plaintiff has to prove actual malice – that the poster knew the allegation was false and made it anyway. When dealing with the internet, those making allegations are often moving targets and part of what Powell describes as the "beehive," where many claims are made by many individuals.

In addition, courts are "very reluctant" to invoke prior restraint of speech, that "you can never say anything bad." This allows allegations to resurface within the "beehive," Powell added.

But if a company does identify a target, it can file suit, conduct discovery, and identify who sent out a tweet, for example. And those displaying bravado online often change their thinking when faced with real life consequences, Powell said.

In Illinois, individuals and groups are also protected, to some degree, by the Citizen Participation Act, said attorney Daliah Saper of the Saper Law Firm in Chicago.

The act is designed to balance the right of a person to file suit for an injury with the rights of people to write and speak freely on issues of public concern. If a major company is the subject to allegations that may be "rhetorical, hyperbolic, or flowery," it is unlikely to be successful when it is at the center of a public debate, Saper told the Cook County Record.

Consistently false statements are also covered unless malice can be proved, and the burden of proof is on the plaintiff, Saper explained. A company then has to decide whether it is worth pursuing those disparaging it online. They need to be found, identified and served papers.

"The cost could be prohibitive," Saper said. "It might be better to spend on public relations rather than pursue individual posters, though this does not mean someone should not be pursued."

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