Costanzo v. Gaul

Holmes, J.,

concurring. I concur in the majority opinion herein, in that the law as enunciated in the syllabus law of Hahn v. Kotten (1975), 43 Ohio St. 2d 237 , controls until such law is overruled or modified. However, I feel that additional principles of law should be established in order to determine the applicability of the qualified privilege in a given instance.

I am in agreement with the majority that the legal principle of qualified privilege may generally be applied to published statements of members of local governmental legislative bodies made other than in official proceedings, but concerning their official duties. However, I feel, as did the three dissenting members of this court in Hahn v. Kotten (1975), 43 Ohio St. 2d 237, 245 , that there need be more than a finding of the absence of “actual malice” to sustain the qualified privilege.

As pointed out in the majority decision of Hahn , but not specifically followed in the syllabus law of the case, the principle of the qualified privilege was “defined and applied in a well-considered Ohio appellate case, West v. People’s Banking & Trust Co. (Washington County, 1967), 14 Ohio App. 2d 69 .” This court then approvingly set forth the following language of West where the Court of Appeals, in discussing the necessary requirements for establishing the defense of qualified privilege, stated, at page 72, as follows:

“ ‘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. This general idea has been otherwise expressed as follows: A communication made *113 in good faith on any subject matter in which the person communicating has an interest, or in reference to which he has a duty, is privileged if 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. The essential elements of a conditionally privileged communication may accordingly be enumerated as good faith, an interest to be upheld, a statement limited in its scope to this purpose, a proper occasion, and publication in a proper manner and to proper parties only.***’ ”

The elements of qualified privilege as noted in West , and seemingly adopted by this court in the decision in Hahn , are: (1) good faith of the one claiming the privilege; (2) an interest to be upheld; (3) a statement limited in its scope to the interest to be upheld; (4) the statement made on a proper occasion; (5) a publication of the statement in a proper manner; and (6) the publication made to proper parties only.

It seems to me, at least in reference to some of these elements, that the determination as to whether they were satisfied, or exceeded, by the defendant constitutes a jury question. Accordingly, it is stated, in 50 American Jurisprudence 2d, 805, Libel and Slander, Section 287, as follows:

“Unnecessary defamation is not countenanced, 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.”

I agree with Justice Stern when he stated in his dissent in Hahn, supra, at page 251, that:

“***I would suggest that the proper rule, as stated by Prosser, ***‘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.

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*114 “ ‘***Once the existence of the privilege is established, the burden is upon the plaintiff to prove that it has been abused by excessive publication, by use of the occasion for an 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.***’ ”

I believe that the law of Ohio should require the jury to determine whether, upon the evidence adduced, the defendant abused his qualified privilege by going beyond the scope of the legislative interest to be upheld, or whether there was an excessive publication, in that the particular newspaper was published considerably beyond the defendant’s particular ward.