"It is important to note that a plaintiff does not become a public figure merely because the allegedly defamatory statements create a controversy; the controversy must have existed prior to the statements."
How later courts described this case
- "It is important to note that a plaintiff does not become a public figure merely because the allegedly defamatory statements create a controversy; the controversy must have existed prior to the statements."
- "First, for Muskingum County, Case No. CT2020-0028 12 a statement to be actionable by a plaintiff, it must be shown that the allegedly defamatory statement was “of and concerning” the plaintiff."
- software company was not a public figure where its Internet advertising was not "extensive"
Written by the judges who cited it.
The opinion
Mariana Brown Bettman, Judge,
concurring in part and dissenting in part.
I concur in all of Judge Sundermann’s opinion except the determination that Worldnet is a private figure and thus does not need to plead or prove actual malice in this defamation action. Judge Sundermann attempts to apply the private-figure test of
Gertz
to reach this conclusion. The United States Supreme Court has never determined that the public-figure/private-figure distinction set forth in
Gertz
applies to businesses, corporate or otherwise. While I believe that businesses undeniably have reputations they rightly wish to protect, I do not find the test in
Gertz
to be a comfortable one to apply to a business plaintiff in a defamation action, particularly in a case involving a media defendant.
4
Judge Sundermann’s opinion and the cases cited in reference to whether a business is “public” or “private” demonstrate that it is virtually impossible to craft a basis on which our trial courts can rely in applying a public/private test to businesses.
5
Further, a case-by-case analysis is not sufficiently useful to our trial courts.
The Supreme Court of Ohio has spoken forcefully about the value of uninhibited debate and a free press. For example, in
Lansdowne v. Beacon Journal Publishing Co.
(1987), 32 Ohio St.3d 176 , 512 N.E.2d 979 , Justice Locher, the author of the majority opinion, wrote:
“This court has recently reinforced the view that the First Amendment grants a unique protection to the press from the ‘chilling effect’ of defamation litigation with its decisions in
Scott v. News-Herald
(1986), 25 Ohio St.3d 243 , 25 OBR 302,
*510
496 N.E.2d 699 , and
Grau v. Kleinschmidt
(1987), 31 Ohio St.3d 84 , 31 OBR 250, 509 N.E.2d 399 .”
Subsequently in
Vail v. Plain Dealer Publishing Co.
(1995), 72 Ohio St.3d 279 , 649 N.E.2d 182 , as in
Scott, supra,
the court held that expressions of opinion are generally protected under Section 11, Article I of the Ohio Constitution as a valid exerdse of freedom of the press. In this regard, opinion is given greater protection under the state than the federal Constitution. This is so, although this point often seems to be overlooked, regardless of the status of the speaker as public or private, individual or business. In other words, as noted by Justice Douglas in his separate concurrence in
Vail, supra,
“[o]nee the determination is made that specific speech is ‘opinion’ the inquiry is at an end. It is constitutionally protected.”
Id.
at 284 , 649 N.E.2d at 186-187 . Indeed, it is on this precise basis that the case against the Gannett defendants was dismissed. The fact that Worldnet is a business was immaterial to this determination.
In
Hahn v. Kotten
(1975), 43 Ohio St.2d 237 , 72 O.O.2d 134 , 331 N.E.2d 713 , the Ohio Supreme Court recognized a qualified privilege in defamation cases. This privilege was cited with approval in
Jacobs v. Frank
(1991), 60 Ohio St.3d 111 , 573 N.E.2d 609 , wherein the court stated that “the concept of a qualified privilege is based upon public policy and the need to protect ■ the publication of a communication made in good faith.”
Id.
at 114 , 573 N.E.2d at 612 .
Consonant with all of these decisions and statements of public policy from our highest court, I believe that instead of trying to decide whether a business is a public or private figure, courts should extend the qualified privilege recognized in
Hahn
to a media defendant to report what is in the public interest. Whether a matter is qualifiedly privileged is a question of law for the court. This qualified privilege can be defeated by a showing of actual malice on the part of the defendant,
Hahn, supra,
paragraph two of the syllabus, or by demonstrating that the matters reported are not in the public interest. The burden of proving either is on the plaintiff.
6
Consumer protection is clearly a matter of public interest, and, in this case, I would require Worldnet to prove actual malice before it can recover. Nevertheless, I agree with the lead opinion that this claim cannot be determined on the pleadings in this case, and I would remand the case for further development of the issue of malice.
4
. Among the difficulties with deciding defamation cases involving media defendants is the existence of many different ways to analyze the problem. See,
e.g., Rosenbloom v. Metromedia, Inc.
(1971), 403 U.S. 29 , 91 S.Ct. 1811 , 29 L.Ed.2d 296 (plurality);
Jadwin v. Minneapolis Star & Tribune
(Minn.1985), 367 N.W.2d 476 ;
Martin Marietta Corp. v. Evening Star Newspaper Co.
(D.D.C.1976), 417 F.Supp. 947 ;
Lawrence v. Fox
(1959), 357 Mich. 134 , 97 N.W.2d 719 ; Lee, Public Interest, Public Figures, and the Corporate Defamation Plaintiff: Jadwin v. Minneapolis Star & Tribune (1987), 81 Nw.U.L.Rev. 318.
5
. In
Embers Supper Club, Inc. v. Scripps-Howard Broadcasting Co.
(1984), 9 Ohio St.3d 22 , 9 OBR 115, 457 N.E.2d 1164 , modified in
Lansdowne, infra,
the Ohio Supreme Court determined, without any particular analysis, that the plaintiff supper club was a private figure. I do not take this case to mean that the court believes that all businesses are private figures.
6
. I do not consider this qualified privilege recognized in
Hahn
to be the same thing as the neutral reportage doctrine discussed in
Young v. Morning Journal
(1996), 76 Ohio St.3d 627 , 669 N.E.2d 1136 .