“A publication is conditionally or qualifiedly privileged where circumstances exist, or are reasonably believed by the defendant to exist, which cast on him the duty of making a communication to a certain other person to whom he makes such communication in the performance of such duty, or where the person is so situated that it becomes right in the interests of society that he should tell third persons certain facts, which he in good faith proceeds to do.”
How later courts described this case
- “A publication is conditionally or qualifiedly privileged where circumstances exist, or are reasonably believed by the defendant to exist, which cast on him the duty of making a communication to a certain other person to whom he makes such communication in the performance of such duty, or where the person is so situated that it becomes right in the interests of society that he should tell third persons certain facts, which he in good faith proceeds to do.”
- plaintiff does not defeat qualified privilege “unless he goes further and shows that in using same, defendant was moved by actual malice, such as ill will, spite, grudge or some ulterior motive”
- “In an action for defamation, the plaintiff's prima facie case is made out when he has established a publication to a third person for which defendant is responsible, the recipient’s understanding of the defamatory meaning, and its actionable character.”
- A communication is privileged when “made to a person having a corresponding interest or duty, even though it contains matter which, without this privilege, would be actionable, and although the duty is not a legal one, but only a moral or social duty of imperfect obligation.”
Written by the judges who cited it.
The opinion
Stern, J.,
dissenting. While I agree with the majority that under the circumstances of this case the communication of the insurance company to its insured was qualifiedly privileged, I cannot agree with the majority’s holding that only actual malice is sufficient to prove an abuse of that privilege, or with its statement that the maintenance of business relationships is a proper purpose which comes within the privilege.
The difficulties with limiting the qualified privilege of defamation to actual malice have been pointed out by the fiOTnm.enta.tors. See Evans, Legal Immunity For Defamation, 24 Minn. L. Rev. 607 , 609-12. As Prosser, Law of Torts (4 Ed.), 794-95, states: “* * * The word ‘malice,’ which has plagued the law of defamation from the beginning, has been much used * * * and it frequently is said that the privilege is forfeited if the publication is ‘malicious.’ # * * Perhaps the statement which best fits the decided cases is that the court will look to the primary motive or purpose by which the defendant is apparently inspired. Discarding ‘malice’ as a meaningless and quite unsatisfactory term, it appears that the privilege is lost if the publication is not made primarily for the purpose of furthering the interest which is entitled to protection. If the defendant acts chiefly from motives of ill-will, he will certainly be liable; and the vehemence of his language may be evidence against him in this respect. But he will likewise be liable if he publishes his statement to accomplish a distinct objective which may be legitimate enough in itself but which is not within the privilege * *
In the instant case, the insurance company had a qualified privilege with regard to informing its customers of the termination of employment of its agent and of the reasons therefor. That privilege was limited to the duty involved — • the duty to inform insureds of the reasons for the change in their business relationship. I cannot agree that the company possessed any privilege to defame in order to protect its business interests against the competition of the one defamed, nor does the majority cite any authority for that *251 proposition. Since, as the Court of Appeals stated, an inference could be drawn that the company’s purpose was. not within the privilege, the case should have been submit-, ted to the jury.
In particular, the evidence in this case appears to me-to raise an issue for the jury of whether the actions of the-company constituted unnecessary defamation. As stated in 50 American Jurisprudence 2d, 805, Section 287:
“Unnecessary defamation is not contenanced, and one who goes beyond what a qualifiedly privileged occasion demands by being unnecessarily defamatory is not protected. It must appear that the publisher of the defamation was compelled to employ the words complained of, and if he could have done all that his duty or interests demanded without libeling or slandering the plaintiff, his imputations are not privileged.
“"Whether or not a publication went beyond what the occasion required: generally is a question of fact for the jury.”
The rule that actual malice is necessary to defeat the qualified privilege is one which has not been adopted by this court, 6 and I believe it unfortunate that the actual malice rule is here adopted by the court to determine whether the privilege has been abused. Rather, I would suggest that the proper rule, as stated by Prosser, supra at 796, “is that the defendant is required to act as reasonable man under the circumstances, with due regard to the strength of his belief, the grounds that he has to support it, and the importance of conveying the information.
U * # #
“ * * # Once the existence of the privilege is establish *252 ed, the burden is upon the plaintiff to prove that it has been abused by excessive publication, by use of the occasion for ah improper purpose, or by lack of belief or grounds for belief in the truth of what is said. Unless only one conclusion can be drawn from the evidence, the determination of the question whether the privilege has been abused is for the jury. * * * ”
In the instant case, I agree with the Court of Appeals that the question of whether the privilege was abused was for the jury, and accordingly, I dissent.
Celebrezze and W. Brown, JJ., concur in the foregoing dissenting opinion.
In Westropp v. E. W. Scripps Co. (1947), 148 Ohio St. 365 , 74 N. E. 2d 340 , the court held that the analogous privilege of fair comment on matters of public concern was lost by actual malice, and also by knowledge of the falsity of stated facts, upon which a statement of opinion was based. The precise holding in this case has been superseded by the United States Supreme Court decision in New York Times Co. v. Sullivan (1964), 376 U. S. 254 .