by David Cosgrove
In a case involving a plaintiff who is not a public figure, a prima facie case of defamation requires proof of the following elements: (1) that the defendant made a defamatory communication—i.e., that he communicated a statement tending to expose the plaintiff to public scorn, hatred, contempt, or ridicule to a third person who reasonably recognized the statement as being defamatory; (2) that the statement was false; (3) that the defendant was at fault in communicating the statement; and (4) that the plaintiff suffered harm. Kairys v. Douglas Stereo Inc., 83 Md. App. 667, 678, 577 A.2d 386 (Md. Ct. Spec. App. 1990) (citing Hearst Corp. v. Hughes, 297 Md. 112, 466 A.2d 486 (Md. 1983) and Gooch v. Md. Mechanical Systems, Inc., 81 Md. App. 376, 567 A.2d 954, cert. denied, 319 Md. 484, 573 A.2d 807 (Md. 1990)). “Fault,” for the purposes of the prima facie case, may be based either on negligence or constitutional malice. New York Times Co. v. Sullivan, 376 U.S. 254, 279–80, 84 S. Ct. 710, 725–26, 11 L.Ed.2d 686 (1964); Batson v. Shiflett, 325 Md. 684, 728, 602 A.2d 1191 (Md. 1992); Hearst Corp., 297 at 122, 466 A.2d 486 (citing Jacron Sales Co. v. Sindorf, 276 Md. 580, 350 A.2d 688 (Md. 1976)); see also Restatement (2d) Torts § 580B (1975) (fault standard for defamation of a private person).
Constitutional malice, which is sometimes referred to as actual malice, Batson, 325 Md. at 728, 602 A.2d 1191, is established when the plaintiff shows, by clear and convincing evidence, that the defendant published the statement in issue either with reckless disregard for its truth or with actual knowledge of its falsity. Id.; see also New York Times Co., 376 U.S. at 285–86, 84 S. Ct. at 728–29 (where plaintiff must demonstrate constitutional malice, malice must be shown with “convincing clarity.”). In contrast, negligence need only be shown by a preponderance of the evidence. Gen’l Motors Corp. v. Piskor, 277 Md. 165, 171–72, 352 A.2d 810 (Md. 1976)(“[T]he plaintiff shall be required to establish the liability of the defendant through proof of falsity and negligence by the preponderance of the evidence….”).
Moreover, Maryland continues to recognize the distinction between defamation per se and defamation per quod. Hearst Corp., 297 Md. at 125, 466 A.2d 486 (citing IBEW, Local 1805 v. Mayo, 281 Md. 475, 379 A.2d 1223 (Md. 1977)); Gooch, 81 Md. App. at 393, 567 A.2d 954. The distinction between per se and per quod was explained in Metromedia, Inc. v. Hillman, 285 Md. 161, 400 A.2d 1117 (Md. 1979):
“In the case of words or conduct actionable per se their injurious character is a self-evident fact of common knowledge of which the court takes judicial notice and need not be pleaded or proved. In the case of words or conduct actionable only per quod, the injurious effect must be established by allegations and proof of special damage and in such cases it is not only necessary to plead and show that the words or actions were defamatory, but it must also appear that such words or conduct caused actual damage.”
1. at 163–64, 400 A.2d 1117 (quoting M & S Furniture Sales Co. v. Edward J. DeBartolo Corp., 249 Md. 540, 241 A.2d 126 (Md. 1968)).
The significance of whether the defamation is per se or per quod is intertwined with the issue of fault. If the statement is actionable per se, the plaintiff must prove actual damages if the defendant was merely negligent in making the false statement. Hearst Corp., 297 Md. at 122, 466 A.2d 486; Metromedia, 285 Md. at 172, 400 A.2d 1117; Jacron, 276 Md. at 590, 350 A.2d 688. On the other hand, when a plaintiff establishes that the statement was made with actual malice, “a presumption of harm to reputation … arises from the publication of words actionable per se. A trier of fact is not constitutionally barred from awarding damages based on that presumption in a constitutional malice case.” Hanlon v. Davis, 76 Md. App. 339, 356, 545 A.2d 72 (Md. Ct. Spec. App. 1988) (citing Hearst, 297 Md. at 125–26, 466 A.2d 486). Therefore, where the statement is actionable per se, damages are presumed if a plaintiff can demonstrate constitutional malice; the jury may award general damages for false words that are actionable per se, even in the absence of proof of harm. Hearst Corp., 297 Md. at 125–26, 466 A.2d 486; Laws v. Thompson, 78 Md. App. 665, 685, 554 A.2d 1264, cert. denied, 316 Md. 428, 559 A.2d 791 (Md. 1989); Hanlon, 76 Md. App. at 355 n. 4, 356–57, 545 A.2d 72.
What was said in Leese v. Baltimore Co. is pertinent here:
[I]t is defamatory “to utter any slander or false tale of another … which may impair or hurt his trade or livelihood.” 3 W. Blackstone, Commentaries on the Laws of England 123 (special ed. 1983). Thus, a statement “that adversely affects [an employee's] fitness for the proper conduct of his business … [is] actionable per se at common law.” Hearst Corp. v. Hughes, 297 Md. 112, 118, 466 A.2d 486 (Md. 1983).
This is not to imply, however, that every negative evaluation of an employee’s performance is potentially defamatory. Rather, “‘[t]he words must go so far as to impute to him some incapacity or lack of due qualification to fill the position.’” Foley v. Hoffman, 188 Md. 273, 284, 52 A.2d 476 (Md. 1947) [other citations omitted]. In other words, the defamatory statement must be such that “if true, would disqualify him or render him less fit properly to fulfill the duties incident to the special character assumed.” Kilgour v. Evening Star Co., 96 Md. 16, 23, 53 A. 716 (1902).
In evaluating whether oral statements to co-workers are defamatory per se, consider the Court’s analysis in Kilgour v. Evening Star Newspaper Co.:
“Words spoken of a person in his office, trade, profession, business or means of getting a livelihood, which tend to expose him to the hazard of losing his office, or which charge him with fraud, indirect dealings or incapacity and thereby tend to injure him in his trade, profession or business, are actionable without proof of special damage, even though such words if spoken or written of an ordinary person, might not be actionable per se.”
According to one scholar, there are four basic common law qualified privileges: (1) The public interest privilege, to publish materials to public officials on matters within their public responsibility; (2) the privilege to publish to someone who shares a common interest, or, relatedly, to publish in defense of oneself or in the interest of others; (3) the fair comment privilege; and (4) the privilege to make a fair and accurate report of public proceedings.
A defendant, in a defamation suit, may assert a qualified, or conditional, privilege. “There are circumstances in which a person will not be held liable for a defamatory statement because the person is acting ‘in furtherance of some interest of social importance, which is entitled protection.’” Woodruff v. Trepel, 125 Md. App. 381, 391, 725 A.2d 612, 617 (Md. Ct. Spec. App. 1999), cert. denied, 354 Md. 332, 731 A.2d 440 (Md. 1999).
In Marchesi v. Franchino, 283 Md. 131, 387 A.2d 1129 (1978), the court explained:
The common law conditional privileges rest upon the notion that a defendant may escape liability for an otherwise actionable defamatory statement, if publication of the utterance advances social policies of greater importance than the *56 vindication of a plaintiff’s reputational interest…. Specifically, the common law recognized that a person ought to be shielded against civil liability for defamation where, in good faith, he publishes a statement in furtherance of his own legitimate interests, or those shared in common with the recipient or third parties, or where his declaration would be of interest to the public in general.
Marchesi, 283 Md. at 135-36, 387 A.2d at 1131 (internal citations omitted); see McDermott v. Hughley, 317 Md. 12, 28, 561 A.2d 1038, 1046 (Md. 1989) (“A statement is accorded a qualified privilege ‘only when the occasion shows that the communicating party and the recipient have a mutual interest in the subject matter, or some duty with respect thereto.’”)(quoting Simon v. Robinson, 221 Md. 200, 206, 154 A.2d 911 (Md. 1959)).
Communications arising out of the employer-employee relationship “clearly enjoy a qualified privilege.” McDermott, 317 Md. at 28, 561 A.2d at 1046 (citing General Motors Corp. v. Piskor, 277 Md. 165, 352 A.2d 810 (Md. 1976)); see also Maryland Code (1974, 1998 Repl. Vol.), § 5-423 of the Courts & Judicial Proceedings Article (provided supra note 10). A qualified privilege in Maryland for the employer-employee relationship is found in (1) Maryland Code (1974, 1998 Repl. Vol.), § 5-423 of the Courts & Judicial Proceedings Article, supra note 10, and (2) the common law.
Whether statements, assuming them to be false for present analysis are made, because of a competitive interest is part of the evaluation concerning whether the qualified privilege has been abused. The Court of Special Appeals in Maryland reasoned that:
A plaintiff “has the right notwithstanding the privileged character of the communication to go to the jury, if there be evidence tending to show actual malice, as where the words unreasonably impute crime, or the occasion of their utterance is such as to indicate, by its unnecessary publicity or otherwise, a purpose wrongfully to defame the plaintiff…. Or, malice may be established by showing that the publication contained matter not relevant to the occasion…. Expressions in excess of what the occasion warrants do not per se take away the privilege, but such evidence may be excess of malice….”
Darvish, 130 Md. App. at 276-77, 745 A.2d at 1140 (alterations in original) (quoting Hanrahan, 269 Md. at 29, 305 A.2d 151 (quoting Fresh, 73 Md. at 93-94, 20 A. 774)) (citing Shapiro v.. Massengill, 105 Md. App. 743, 777 n. 11, 661 A.2d 202 (Md. Ct. Spec. App. 1995)).
Furthermore, “[w]hile the question of whether a defamatory communication enjoys a conditional privilege is one of law for the court, whether it has been forfeited by malice is usually a question for the jury.” Sindorf, 276 Md. at 600, 350 A.2d at 700 (citing Hanrahan, 269 Md. at 29, 305 A.2d at 156; Jump v. Barnes, 139 Md. 101, 114 A. 734 (Md. 1921); Bavington v. Robinson, 124 Md. 85, 90, 91 A. 777 (1914); Fresh, 73 Md. at 93, 20 A. 774); see McDermott, 317 Md. at 30, 561 A.2d at 1047 (“Our cases make clear that resolution of whether the privilege has been abused and whether malice exists is ordinarily a jury question.”)(citing General Motors Corp., 277 Md. at 165, 352 A.2d 810)).
Therefore, any competitive interest bias, if supported by evidence, could be the subject of a jury instruction and jury determination as to whether the defendant abused his qualified privilege….In short, a defendant may lose the qualified privilege if the plaintiff demonstrates that “the publication is made for a purpose other than to further the social interest entitled to protection … or can prove malice on the part of the publisher.” McDermott, 317 Md. at 29, 561 A.2d at 1047 (citations omitted). Food for thought.