Claims for damages for making false and defamatory statements have been the subject of much publicity recently. Such cases often involve public figures, and the requirement that to overcome First Amendment free speech protections the plaintiff bringing suit must prove actual malicious intent to make false statements.
What standards of proof apply in suits brought by private persons for defamation were explored by Maryland’s highest court in a case called Seley-Ratke v. Hosmane.
The majority opinion in this 5-2 decision indicates that Hosmane was accused of sexual misconduct in the workplace, and chose to retire. He was charged with criminal offenses, which were dropped after agreeing to a financial settlement with the alleged victim.
He then filed suit against another colleague in the workplace, for allegedly making defamatory statements about him to co-workers. At trial, a jury found in favor of the defendant, and an appeal was taken challenging the instructions to the jury as to the burden of proof.
The opinion noted that in claims of private defamation, the plaintiff has the burden of proving that the offending statements were false and damaged his reputation. A defendant in such a case can raise a common law privilege for making the statement. The privileges include:
1) public interest privilege, publishing information about public officials,
2) fair comment privilege,
3) fair and accurate reporting or public proceedings, and
4) the common interest privilege.
The common interest privilege (which was asserted in this case) applies for statements to persons who have an interest in the property or business or professional dealings, and usually applies among members of an identifiable group with similar goals or who are involved in a single endeavor.
If the court finds, as was done here, that statements made to work colleagues were subject to the common interest privilege, then the plaintiff must overcome the privilege by proving that the defendant abused the privilege by making the statement knowing it was false and with the intent to deceive another.
The majority ruled that the burden of proof that such a plaintiff must meet is the preponderance of evidence or “more likely than not” standard applicable in most civil cases, not the higher clear and convincing evidence standard. They felt this standard would best protect the important state interest in protecting private persons from begin defamed.
The dissenting opinion argued that, in an area of law where the States are clearly divided, the Court should come down in favor of the important interests protected by the privileges, and require proof by a higher standard to overcome them.
Thomas Patrick Ryan is a partner in the Rockville law firm of McCarthy Wilson, which specializes in civil litigation.