JOE OBI OKEKE v. CHINEDU SANI ANEKWE (L-2338-18, UNION COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the

internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3391-20

JOE OBI OKEKE,

Plaintiff-Appellant,

v.

CHINEDU SANI ANEKWE,

Defendant-Respondent.

________________________

Submitted May 9, 2022 – Decided July 12, 2022

Before Judges Rothstadt and Natali.

On appeal from the Superior Court of New Jersey, Law

Division, Union County, Docket No. L-2338-18.

Dianne Glenn, attorney for appellant.

Corinne M. Mullen, attorney for respondent.

PER CURIAM

Plaintiff Joe Obi Okeke appeals from a June 14, 2021 order dismissing his

defamation action against defendant at the close of his proofs under Rule 4:40.

On appeal, plaintiff argues the court mistakenly dismissed his complaint as he

established a prima facie case of defamation. He also contends the court

erroneously applied the actual-malice standard rather than the ordinary

negligence standard for a private plaintiff in a matter of private concern. For

the following reasons, we affirm in part, reverse in part, and remand.

I.

Plaintiff alleged defendant posted false and defamatory statements

regarding his accounting practice on Facebook and Yelp and accused defendant

of filing a false complaint with the Better Business Bureau (BBB). Plaintiff

requested defendant delete those comments and issue a retraction. He also

sought compensatory damages. After an unsuccessful mediation, the parties

proceeded to trial, where plaintiff, his wife, and a client testified, and from

which we derive the following facts.

Defendant hired plaintiff as his accountant in 2013, and plaintiff

continued to assist defendant with his tax needs for the following five years.

Plaintiff testified that he understood defendant to be satisfied with his services

during this period, claiming "there w[ere] no issues" between the two.

In 2017, defendant learned that he owed the federal government $3,910

with respect to his 2014 taxes after he failed to report income related to his

service in the National Guard. Defendant was displeased, as his previous federal

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refunds allegedly exceeded $7,000. Plaintiff faulted defendant for failing to

provide his W-2 related to his National Guard revenue, resulting in plaintiff

failing to report the associated income when filing defendant's taxes.1

Defendant inquired as to how he might be able to avoid paying the

additional taxes and penalties or obtain a higher refund. Plaintiff and defendant

agreed to meet to review defendant's previous tax filings and discuss defendant's

options. In anticipation of that meeting, plaintiff offered to prepare an

illustrative filing for a married couple filing separately to determine if that

alternate option would reduce defendant's tax obligations.

According to plaintiff, defendant failed to arrive at plaintiff's office at the

scheduled time, and defendant ascribed blame to plaintiff for the missed

meeting. The following exchange ensued via text message:2

[Defendant]: Good morning, Obi, I wasn't able to call

yesterday as I became very busy. I only have two days

off this week, this is really important for me to get this

1

We note there is a discrepancy in the record as to the tax year for the omitted

W-2 form. Defendant asserts plaintiff's error related to his 2014 taxes, but he

mistakenly referred to the "2016 tax returns" in his posts because the Internal

Revenue Service (IRS) notified him of the omission in 2017. This discrepancy

does not affect our analysis, as we agree with the trial judge that the statements

consist of defendant's opinion. See infra at pp. 14-15.

2

We restate the text messages and related posts in their original form to provide

appropriate context, as the meaning of the abbreviated words is easily

discernable.

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done but it seems like you're extremely busy and I have

to call just to set up a time to come over and see you.

This is not very convenient for me. I'm just gonna stop

by in afternoon and pick up my documents maybe we

can try this again some other year.

[Plaintiff]: Chinedu . . . if it were in my younger days

I will curse I our very badly. Instead of u telling me

straight up you want to go elsewhere to do ur taxes, u

want to blame me for nothing. We agreed u wld call

me on Mon when u get off work, I never heard from

[you]. When now I do, u come up with this junk. You

are frustrated u owe taxes & u want to play games to

get around. I hv even finished the [three] versions we

discussed & was ready to discuss it when u come but u

nvr called or came. Why blame me for anythg. I wish

u luck in trying to get around paying ur taxes. You can

come this evening at 5:30 & pick up you docs. Good

bye.

[Defendant]: Are you out of your mind? I'm coming

NOW! Give me my shit. You must be drunk! I'm

driving there now you better be there. I'm definitely

going to say your name to the Better Business Bureau

because this is not how you talk to your customer under

any circumstances and I'm going to place your

information on ALL the African community members

that I know to not come to YOU because this is so

unbelievable that you would write this kind of mess. I

came to office and you were not there. Please be there

by 5:30 pm if not I will put it to the authorities. Please

have every single ounce of documentation that you

have of me I do not want you holding anything of mine

EVER! Delete all my data! . . . FYI I was going to [d]o

the tax Myself because it was a WASH. But that is

NONE of your business anymore. See you 5:30 pm

prompt!

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[Plaintiff]: Wow, Chinedu, wow. Nvr in wildest

imagination wld I think u will behave this way,

unbelievable. But I hv been around for a while & I tend

not to be too surprised these days. You need to know

one thg though, u do not control my destiny. U cannot

make or unmake me!!! I'll see u at 5:30 to pick up ur

docs. Good bye.

[Defendant]: You should never speak to your clients in

that manner you were exceptionally rude!

[Plaintiff]: I'm the one who was rude??? Cld u read the

texts all over again? Or better yet ask an objective

person to do so. Then u tell me how I was rude to u.

You need to know there are some ppl not worth hvg as

a client. I'm always overly nice to my clients until they

go out of line & u were way out of line. At that point,

I don't care abt u being my client anymore. The reason

I'm responding to u now is bcos I won't say anythg to u

when u come to pick up ur docs. And pse don't say

anythg to me when u come. Finally, u came with all the

threats not knowing I hve the ace up on u. You don't

think IRS might want to know why u r filing differently

from ur wife. So, my man, like the saying goes, don't

throw stones when u live in a glass house.

Plaintiff testified that he was "really surprised" by defendant's texts, but

nevertheless agreed that defendant could come to the office to retrieve his

documents from plaintiff's wife, his office manager at the time. Plaintiff

prepared a letter for defendant to sign and acknowledge receipt of the files.

Defendant signed the letter and left the office with his documents.

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That same day, defendant filed a complaint with the BBB. He reported

the text messages he received from plaintiff, which he described as

"exceptionally irresponsible." The BBB informed plaintiff of the complaint via

letter. Defendant also filed a complaint with the Department of Consumer

Affairs and posted a message on the Hillside Community Forum on Facebook,

as well as on Yelp, giving plaintiff's business a one-star rating out of five. The

Facebook and Yelp posts stated:

Facebook:

Public Service Announcement: If you happen to use

OKEKE CPA LLC (Obi) on 1673 Springfield Ave.,

Maplewood, NJ as a tax preparer PLEASE DO NOT! I

used him for two years in a row and not only did he

mess up my tax returns for 2016 causing me and my

family to File an adjusted the tax returns, but this year

when I told him I would no longer be with him he sent

me a text laced with INSULTS and CURSES. He stated

I was "dumb for leaving" "I am only leaving to commit

Fraud!" "I am a loser" " and when I said I would tell

others about his actions, he said "I don't need you or

your business!" Anyone who know me, knows I am not

the explosive kind. I don't take a lot of things

personally and I do report my facts inaccurately. I

would never falsely accuse anyone for anything . . . but

THIS, I reported to the [BBB]. I filed a compliant with

department of consumer affairs as well. If I was I was

a person in a different neighborhood, there's no way tax

prepare would speak to me in that manner. One of the

reasons why local businesses teat us the way they do to

is because we except it. They know they can say

whatever they need to and there will be no follow up.

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But I'm not going to let this go. I WILL follow up my

complaints to ensure that no one else gets treated this

way. I'm tired of being second-class citizen in my own

neighborhood.

Yelp:

Public Service Announcement: If you happen to use

OKEKE CPA LLC (Obi) on 1673 Springfield Ave.,

Maplewood, NJ as a tax preparer PLEASE DO NOT! I

used him for two years in a row and not only did he

mess up my tax returns for 2016 causing me and my

family to File an adjusted the tax returns, but this year

when I told him I would no longer be with him he sent

me a text laced with INSULTS and CURSES. He stated

I was "dumb for leaving" "I am only leaving to commit

Fraud!" "I am a loser" " and when I said I would tell

others about his actions, he said "I don't need you or

your business!" Anyone who know me, knows I am not

the explosive kind. I don't take a lot of things

personally and I do report my facts accurately. I would

never falsely accuse anyone for anything . . . but THIS

I reported to the [BBB]. I filed a compliant with

department of consumer affairs as well. If I was I was

a person in a different neighborhood, there's no way

text prepare would speak to me in that manner. One of

the reasons why local businesses react the way they do

to is because we except it. They know they can say

whatever they need to and there will be no follow up.

But I'm not going to let this go. I will follow up my

complaints to ensure that no one else gets treated this

way. I'm tired of being second-class citizen in my own

neighborhood.

Plaintiff explained that he did not find out about the online postings until

Angeline Gabriel, his friend and client, informed him that she had seen them.

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Plaintiff stated that he felt defendant had "destroyed what [he] worked so hard

for to build up in a certain community." Plaintiff further testified that he had

lost business opportunities and had difficulty signing new clients because of the

postings.

On cross-examination, plaintiff admitted that the posts expressed

defendant's opinion of plaintiff as a tax preparer, but also challenged the truth

of defendant's postings, particularly the comment that plaintiff had "messed up"

defendant's 2016 tax returns. Plaintiff denied responsibility for any amendments

to the tax returns required by the IRS, and stressed that the quotations were not

remarks he made.

At the close of plaintiff's proofs, defendant made a motion for judgment

under Rule 4:40-1, arguing that plaintiff had not established a prima face case

of defamation.3 The court permitted the parties to brief the issue, and heard

arguments at a June 14, 2021 hearing, at the conclusion of which, the court

granted defendant's motion, reasoning that plaintiff had not satisfied the

standard for defamation under Ward v. Zelikovsky, 136 N.J. 516, 529 (1994).

3

Counsel moved for a "directed verdict," which the judge understood as a Rule

4:40-1 motion as the application was "made at the close of the whole case or at

the close of the opposition's case."

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The court characterized the "critical issue" as "the nature of the practice

of [plaintiff]" and whether the IRS required corrections on defendant's 2016 tax

returns. The court found the IRS required adjustments after defendant failed to

provide an additional W-2 form, and therefore owed money on his federal taxes.

Whether this omission was the fault of plaintiff or defendant, the court noted,

was immaterial to the "objective test of true or false" that it applied.

The court also concluded defendant's postings were "opinion speech"

protected by the First Amendment. In doing so, the court reasoned that

defendant was entitled to his opinion, even it encompassed unrealistic

expectations of plaintiff's duty to collect tax information from him. Further, the

court determined that plaintiff did not prove actual malice, and as such, there

could be no "causation." Accordingly, the court granted defendant's application

and entered an order of dismissal on June 14, 2021. This appeal followed.

II.

Before us, plaintiff argues the trial judge erred in granting defendant's

motion as defendant's Internet postings were defamatory. Plaintiff initially

challenges the court's conclusion that defendant's postings were protected

opinion speech. He maintains defendant's postings on Facebook and Yelp were

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"knowingly false" and included "reasonably specific assertions of fact." Ward,

136 N.J. at 531. We agree with plaintiff's arguments in part.

Plaintiff contends the postings primarily contained two types of

accusatory statements warning other community members not to use plaintiff's

services. First, plaintiff claims defendant falsely asserted he "mess[ed] up"

defendant's taxes, which required an adjusted tax return. Second, he maintains

defendant incorrectly posted that plaintiff cursed at and insulted him, calling

defendant a "loser," and claimed defendant was taking his business elsewhere

only so that he could "commit [tax] fraud." We are satisfied that the first

statements were not defamatory, but we remand with respect to the second

statements.

We review a Rule 4:40-1 motion for judgment de novo. Boyle v. Ford

Motor Co., 399 N.J. Super. 18, 40 (App. Div.), certif. denied, 196 N.J. 597

(2008). Like the trial court, we "must accept as true all the evidence which

supports the position of the non-moving party, according [that party] the benefit

of all legitimate inferences." RSB Lab. Servs., Inc. v. BSI, Corp., 368 N.J.

Super. 540, 555 (App. Div. 2004). If "reasonable minds could differ" on the

result, "the motion must be denied." Smith v. Millville Rescue Squad, 225 N.J.

373, 397 (2016) (quoting Verdicchio v. Ricca, 179 N.J. 1, 30 (2004)).

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"[T]he law of defamation exists to achieve the proper balance between

protecting reputation and protecting free speech." DeAngelis v. Hill, 180 N.J.

1, 12 (2004) (quoting Ward, 136 N.J. at 528). The tort recognizes that people

should be free to enjoy their reputations without suffering false and defamatory

attacks. Turf Lawnmower Repair, Inc. v. Bergen Record Corp., 139 N.J. 392,

409 (1995), cert. denied, 516 U.S. 1066 (1996). As such, liability for defamation

is imposed based upon publication of a false statement that injures the reputation

of another. Salzano v. N. Jersey Media Grp., Inc., 201 N.J. 500, 512 (2010),

cert. denied, 562 U.S. 1200 (2011).

To establish liability for defamation, a plaintiff must prove: "(1) that

defendants made a false and defamatory statement concerning [the plaintiff]; (2)

that the statement was communicated to another person (and not privileged); and

(3) that defendants acted negligently or with actual malice." G.D. v. Kenny, 205

N.J. 275, 292-93 (2011). Malice must be established by clear and convincing

evidence, whereas negligence carries a preponderance of the evidence burden.

See Lynch v. N.J. Educ. Ass'n, 161 N.J. 152, 169 (1999).

Under the first prong, the question of whether "a statement is susceptible

of a defamatory meaning is a question of law for the court." Ward, 136 N.J. at

529. In making this determination, we review a statement's content,

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verifiability, and context to evaluate its susceptibility to a defamatory meaning.

Ward, 136 N.J. at 529.

If the challenged language is ambiguous "in the sense of being reasonably

subject to either an innocent or a defamatory meaning," it is for the factfinder to

determine whether the language will be read in its defamatory sense. Herrmann

v. Newark Morning Ledger Co., 48 N.J. Super. 420, 429-30 (App. Div. 1958);

Sedore v. Recorder Pub. Co., 315 N.J. Super. 137, 145-46 (App. Div. 1998) ("The

jury decides the question only when the trial court determines that 'the statement

is reasonably susceptible to both a defamatory and a non-defamatory meaning.'"

(quoting Molnar v. The Star–Ledger, 193 N.J. Super. 12, 18 (App. Div. 1984)));

see also Restatement (Second) of Torts § 617(a) (Am. Law Inst. 1977)

("[Q]uestion of whether the defamatory imputations are true . . . is ordinarily for

the jury.").

To analyze the content of a statement, courts consider the fair and natural

meaning that the words would be given by persons of reasonable intelligence.

DeAngelis v. Hill, 180 N.J. 1, 14 (2004). With respect to context, "courts must

consider '[t]he listener's reasonable interpretation, which will be based in part

on the context in which the statement appears.'" Id. at 15 (quoting Ward, 136 N.J.

at 531).

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Verifiability of the speech centers on whether the statement is one of fact

or opinion. Id. at 14. That exercise, in turn, requires a court to consider whether

a statement is true or false. Lynch v. N.J. Educ. Ass'n, 161 N.J. 152, 167 (1999).

A factual statement can be proved or disproved objectively while an opinion

statement generally cannot. Ibid. Statements of opinion are "not capable of

proof of truth or falsity because they reflect a person's state of mind ." NuWave

Inv. Corp. v. Hyman Beck & Co., 432 N.J. Super. 539, 553 (App. Div. 2013)

(quoting Ward, 136 N.J. at 531), aff'd, 221 N.J. 495 (2015). Thus, "[s]tatements

of opinion, as a matter of constitutional law, enjoy absolute immunity." Dairy

Stores, Inc. v. Sentinel Pub. Co., Inc., 104 N.J. 125, 147 (1986).

An opinion is actionable, however, if "it implies 'reasonably specific

assertions' of 'underlying objective facts that are false.'" Ibid. (quoting Ward,

136 N.J. at 531). The more fact based the statement, the greater likelihood that

it will be actionable. Ward, 136 at 531-32. "Loose, figurative or hyperbolic

language is not likely to imply specific facts" and thus is generally not

actionable. Lynch, 161 N.J. at 167–68. Similarly, "epithets, insults, name-

calling, profanity and hyperbole" are not actionable. DeAngelis, 180 N.J. at 14.

In addition, as relevant here, "[t]he 'false attribution' of a quotation to a

speaker may be defamatory if putting the words in the plaintiff's mouth 'cast[s]

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doubt on the plaintiff's fitness for his profession.'" Chau v. Lewis, 771 F.3d 118,

131 (2d Cir. 2014) (quoting Mahoney v. Adirondack Publ'g Co., 517 N.E.2d

1365, 1368 (N.Y. 1987)); see also Masson v. New Yorker Magazine, Inc., 501

U.S. 496, 511 (1991) ("[R]egardless of the truth or falsity of the factual matters

asserted within the quoted statement, the attribution may result in injury to

reputation because the manner of expression or even the fact that the statement

was made indicates a negative personal trait or an attitude the speaker does not

hold.").

Finally, we note that a statement can be "fairly accurate" and still be

considered the truth as a defense to a defamation claim. G.D., 205 N.J. at 309-

311. The law of defamation overlooks minor inaccuracies, focusing instead on

"substantial truth." Ibid. (quoting Masson, 501 U.S. at 516). "Minor

inaccuracies do not amount to falsity so long as ‘the substance, the gist, the

sting, of the libelous charge be justified.'" Ibid.

We affirm the court's June 14, 2021 order to the extent it dismissed

plaintiff's complaint based upon defendant's comments that plaintiff erroneously

prepared his 2016 returns. In granting defendant's motion, the trial judge

determined plaintiff had not proved defendant's statements were defamatory, as

the evidence established that the IRS required defendant to make amendments

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to his filed tax return, and defendant's belief that plaintiff was at fault was merely

his opinion.

Specifically, the judge concluded that the 2016 tax returns "prepared . . .

for defendant by [plaintiff]'s office . . . did . . . result in the IRS requiring

corrections. That's stipulated that it happened." Plaintiff admitted defendant

received an amended tax return after providing additional W-2 forms, and the

court made an explicit finding that "corrections were necessary." We are

satisfied that the judge properly decided defendant's claim on this point, as

"reasonable minds" would not differ on the result. Smith, 225 N.J. at 397. The

trial evidence supported the court's finding that defendant's statements asserting

that plaintiff's error required defendant to refile his 2016 taxes were not

defamatory.4 We agree with the judge's determination that the statement

accusing plaintiff of "mess[ing] up" the tax filings was merely defendant's

opinion of the matter.

We reach a different conclusion with respect to the second group of

statements in defendant's posts, which accused plaintiff of sending insulting text

4

We are also satisfied that any mistake as to the referenced year of the refiled

tax returns does not undermine the judge's finding as to the statement's veracity,

as it is a "minor inaccuracy," see G.D., 205 N.J. at 309-311, and has no effect

on the fact that the IRS required defendant to pay additional taxes due to the

omitted W-2 forms, to which plaintiff admitted.

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messages "laced with curses" and attributed various inflammatory statements to

plaintiff. The court did not make any findings as to these statements. As is

evident from the texts, however, the messages plaintiff sent to defendant do not

contain any curses and did not call plaintiff any disparaging names. Rather,

plaintiff merely wrote to defendant that "if [I] were in my younger days I w[ould]

curse [you] ou[t] very badly." Further, the postings attribute direct quotations

to plaintiff that are not contained in the text messages, including the alleged

statement that defendant was "only leaving to commit fraud."

As such, we remand for the court to make findings regarding the

defamatory nature of these statements as applied against the liberal standard

under Rule 4:40, and depending on the court's determination, proceed as

appropriate with the remanded proceedings. In reaching its conclusion, the court

should be mindful that the "'false attribution' of a quotation to a speaker may be

defamatory" when it "casts doubt on plaintiff's fitness for his profession.'" Chau,

771 F.3d at 131.

II.

For purposes of completeness, we also address plaintiff's argument with

respect to the actual-malice standard. As noted, plaintiff contends the judge

erroneously applied the actual-malice standard, applicable for matters of public

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concern, rather than the ordinary negligence standard, applicable for a private

plaintiff in matters of private concern. Specifically, plaintiff contends that

because the parties are private individuals, 5 and "the statements did not concern

public policy, health or safety, and do not advance the public's interest," the

negligence standard should apply. Defendant argues the matter relates to a

public concern because plaintiff is a certified public accountant licensed by the

State and his dealings with individual taxpayers "affect[s] the community as a

whole."

We agree with plaintiff that defendant's statements do not involve a matter

of public concern and, as such, his liability for any statements deemed to be

defamatory in nature should be evaluated under a negligence standard. We note,

however, that no error arose out of the judge's application of the actual malice

standard with respect to matters of public concern, as he decided the motion

based upon the threshold finding that defendant's statements about his 2016 tax

returns were opinion speech, and therefore not actionable.

Two standards exist to determine liability in defamation cases. Where the

subject speech "touch[es] on matters of public concern and interest" courts apply

5

Private citizens are those who do not voluntarily thrust themselves into the

public limelight. Turf Lawnmower, 139 N.J. at 412.

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the "actual-malice standard." Durando v. Nutley Sun, 209 N.J. 235, 247 (2012);

see also Senna v. Florimont, 196 N.J. 469, 474 (2008) ("we give greater

protection to speech involving public officials, public figures, and the public

interest"). That is so because "speech involving matters of public interest and

concern needs adequate breathing room in a democratic society." Senna, 196

N.J. at 491 (citing New York Times Co. v. Sullivan, 376 U.S. 254, 271-72,

(1964)). Actual malice exists where "the speaker made a false and defamatory

statement either knowing it was false or in reckless disregard of the truth" and

"must be proven by 'clear and convincing evidence.'" Id. at 474, 483 n.8

(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986)).

On the other hand, where the subject speech "does not involve matters of

public concern" courts apply a negligence standard. Id. at 491. This is so

because "[s]peech that does not involve matters of public concern requires that

greater weight be placed on an individual's interest in an unimpaired reputation."

Ibid. The negligence standard requires a plaintiff to prove "that the speaker

acted negligently in failing to ascertain the truth of the statement" by a

"preponderance of the evidence." Id. at 474, 491 n.16.

In determining whether "speech involves a matter of public concern or

interest that will trigger the actual-malice standard" courts "should consider the

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content, form, and context of the speech." Id. at 497. "Content requires that

[courts] look at the nature and importance of the speech." W.J.A. v. D.A., 210

N.J. 229, 244 (2012). "Context requires that [courts] look at the identity of the

speaker, his ability to exercise due care, and the identity of the targeted

audience." Ibid.

In Senna, the operator of a boardwalk game broadcasted messages over a

loudspeaker stating that a nearby competitor was "dishonest," and "a crook," and

"screwed all of his customers" by not redeeming prize tickets. 196 N.J. at 476. Our

Supreme Court held that such speech "impugning the honesty of a business

competitor" was not entitled to the heightened protection of the actual-malice

standard. Id. at 474. The Court rejected the argument that the speech should be

subject to the higher standard because it constituted an accusation of consumer

fraud. Id. at 499. In doing so, the Court reasoned that "the identity of the

speaker is an important factor" explaining that the "[d]efendant's employees

were basically scaring customers away from [the] plaintiff," which it concluded

was distinguishable from "disinterested investigative reporting by a newspaper,

using a variety of sources, to demonstrate that customers were being defrauded

by a service-oriented business," which would be entitled to greater protection.

Ibid.

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The Court also rejected the argument that the speech was a matter of

public concern and entitled to the protection of an actual-malice standard

because defendant's business was "highly regulated." Id. at 499-500. It

explained that speech does not involve a matter of public interest merely because

it concerns a highly regulated industry. Id. at 500. It provided as an example

that "when one accountant wrongly and falsely accuses another accountant of

overcharging clients, and disseminates those accusations to clients, the public

interest is not served by shielding the speaker from the consequences of his

negligence." Id. at 500.

In sum, the Court concluded that there was no "significant public benefit

in giving business rivals greater protection for the false and defamatory speech

they use as an economic club to harm each other." Id. at 496. It explained

"[b]usinesses have an obligation to act with due care before calling the services

rendered by a rival crooked or fraudulent" and noted that "no business owner

will ever be liable for the truth he tells about a rival." Id. at 496, 499.

In W.J.A., the Court relied on Senna in determining that a website the

defendant created accusing the plaintiff, his uncle, of sexually abusing him as a

child did not "implicate[] the public interest." 210 N.J. at 246. It reasoned that

the speech consisted of "a personal and subjective belief" about "an essentially

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private dispute." Id. at 245-46. Further, the Court stated that the defendant's

"desire to publish the Internet statements to the entire country" did not

"necessarily make his allegations a matter of public interest." Ibid.

Here, we are satisfied that the "content, form, and context of [defendant's]

speech" indicate that it did not involve a matter of public concern. Senna, 196

N.J. at 497. As noted, defendant's Facebook and Yelp postings accused plaintiff

of "mess[ing] up [his] tax returns," and insulting and cursing at him. Those

claims relate to isolated incidents between private individuals and, as such, are

of limited concern to the public. See W.J.A., 210 N.J. at 245-46. That defendant

published statements about his private dispute with plaintiff on the Internet does

not transform the nature of his speech into a matter of public concern. Ibid.

Defendant's identity as a disgruntled former client further supports that

his speech was not a matter of public concern. Defendant is not akin to a

disinterested reporter "using a variety of sources[] to demonstrate that customers

were being defrauded by" plaintiff, but rather was effectively attempting to

"scar[e] customers away from plaintiff." Senna, 196 N.J. at 499. Finally,

contrary to defendant's contentions, we are not persuaded that plaintiff's status

as a certified public accountant regulated by the State elevates defendant's

speech to a matter of public concern. Id. at 500.

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In sum, we conclude that defendant's Internet postings did not involve a

matter of public concern and, therefore, do not qualify for the heightened

protections of the actual-malice standard. As such, if the court determines any

of defendant's statements were of a defamatory nature, it should apply a

negligence standard in evaluating defendant's liability.

To the extent we have not specifically addressed any of plaintiff's

arguments, it is because we conclude they are of insufficient merit to warrant

discussion in a written opinion. R. 2:11-3(e)(1)(E).

Reversed in part and remanded to the trial court for further proceedings in

accordance with this opinion. Nothing in our opinion should be interpreted as

an expression of our view on the outcome of the remanded proceedings. We do

not retain jurisdiction.

A-3391-20

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