B. Private Defamation (12/96; revised 3/02)
Introductory Note:
The instructions set forth below apply only where the plaintiff is a private person (as opposed to a public official or "public figure") and the subject matter of the alleged defamatory statement is not a matter of legitimate public concern.(1) The Judge should be aware that the Supreme Court in Rocci v. Ecole Secondaire 165 N.J. 146 (2000) has expanded free speech protection to private persons, if the reasons are deemed to be "in the public interest or of legitimate public concern and for the plaintiff to prevail he/she must prove "actual malice" as defined in Pitts v. Newark Bd. of Educ. 337 N.J. Super. 331 (2001) and pecuniary loss (actual damage to reputation) damages will not be presumed.
1. General Elements of Defamation
In order for you to find that plaintiff is entitled to recover damages from defendant for defamation, you must find by a preponderance of the credible evidence that defendant communicated to a person other than the plaintiff a false and defamatory statement of fact concerning the plaintiff and that defendant had actual knowledge that the statement was false, or acted in reckless disregard of its truth or falsity, or acted negligently in failing to ascertain the falsity of the statement.
There are thus five elements in addition to damages which plaintiff must prove by a preponderance of the evidence(2) in order to prevail in this case. These five elements are: (1) a defamatory statement of fact; (2) concerning the plaintiff; (3) which was false; (4) which was communicated to a person or persons other than the plaintiff; and (5) with actual knowledge by the defendant that the statement was false, or with reckless disregard by the defendant of the statement's truth or falsity, or with negligence by the defendant in failing to determine the falsity of the statement.(3)
2. Specific Elements
(a) The statement must be a defamatory statement of fact. [Same as for Public Defamation.]
(b) The plaintiff must prove that the defamatory statement concerned the plaintiff. [Same as for Public Defamation.]
(c) The plaintiff must prove that the defamatory statement is false. [Same as for Public Defamation.]
(d) The plaintiff must prove that the defamatory statement was communicated to a person or persons other than the plaintiff. [Same as for Public Defamation.]
(e) The plaintiff must prove that defendant actually knew the statement was false when he/she communicated it, or defendant communicated the statement with reckless disregard of its truth or falsity, or defendant acted negligently in failing to ascertain the falsity of the statement before communicating it.
The last element that plaintiff must prove deals with the defendant's fault in communicating the defamatory statement. The plaintiff can satisfy this element in one of three ways: (a) by proving that defendant communicated a defamatory statement which he/she actually knew to be false, or (b) by proving that defendant communicated a defamatory statement with a high degree of awareness that it was probably false or with serious doubts as to the truth of the statement, or (c) by proving that defendant acted negligently in failing to ascertain the falsity of the statement prior to communicating it.
In determining if the defendant acted negligently in failing to ascertain the falsity of the statement, the standard you are to apply is whether the defendant failed to act as a reasonably prudent person would have acted under like circumstances. You are to consider whether the defendant had reasonable grounds for believing that the statement was true, and whether the defendant acted reasonably in checking on the truth or falsity of the statement communicating it. Factors which may play a role in your considerations include defendant's investigation or lack of investigation of the accuracy of the statement, the thoroughness of that investigation, the investigation, the nature and the interests of the persons to whom the statement was communicated, the extent of damage that would be produced if the communication proved to be false, and whether the defendant had an honest but nonetheless mistaken belief in the truth of the statement.(4)
3. Qualified Privilege (5/98)
Introductory Note:
In certain circumstances of private defamation under Charge 3.11, the communication of a defamatory statement to another will be conditionally privileged. The circumstances which give rise to such a privilege are where there is a reasonable belief that the information affects a sufficiently important interest of the person making or receiving the statement and knowledge of the information will serve the lawful protection of that interest.(5) The question of whether a defamatory statement is conditionally privileged is a determination for the Court.(6) If the Court determines that the communication of the defamatory statement is conditionally privileged, then the question of whether there has been an abuse of the privilege entitling the plaintiff to prevail is for the jury.(7) The following instructions are to be given where the Court has determined that the statement is conditionally privileged but there is an issue for the jury as to abuse of the privilege.
In this case, the defendant has asserted a qualified privilege to make the statements which the plaintiff alleges are defamatory. In other words, defendant claims that, even if the communication was defamatory, he/she/it was entitled to make the communication involved in this case. It is my job to decide if such a privilege exists, and I have decided that it does because [select the particular privilege(s) which the defendant has asserted and factually describe the interests which defendant claims were being protected (a) protecting his/her lawful interests,(8) or (b) protecting the lawful interest of the person(s) to whom the allegedly defamatory statement was communicated,(9) or (c) informing those persons sharing a common interest of information which they are entitled to know by reason of their common interest,(10) or (d) lawfully protecting the well-being of defendant's immediate family member(s) or an immediate family member of the person to whom the statement was communicated.(11)]
However, the privilege that I have found is not absolute. It can be abused and lost. It is your job to decide if the privilege was abused and lost. So, if you determine that defendant's statements were defamatory, you must also consider whether the defendant abused his/her/its qualified privilege by proving that defendant lost or abused it (them).(12) If you find that the defendant abused his/her/its qualified privilege, then you may find in favor of plaintiff, if you find that the defendant did not abuse his/her/its qualified privilege, then you may not find in favor of plaintiff.(13)
You will recall that I charged that plaintiff must prove the first five elements of defamation by a preponderance of the credible evidence. Because there are legitimate interests underlying the privilege, I have just described, the plaintiff must bear a different and heavier burden of proof in order to establish that defendant has lost or abused the privilege to communicate the defamatory statement. The plaintiff must show by clear and convincing evidence, not merely by a preponderance of the evidence, that defendant abused the privilege.(14)
Clear and convincing evidence should produce in the mind of the trier of fact "a firm belief or conviction as to the truth of the allegations sought to be established."(15) It must be "so clear, direct and weighty and convincing as to enable either a judge or jury to come to a clear conviction, without hesitancy, of the truth of the precise facts in issue."(16) The clear and convincing standard of proof requires more than a "mere balancing of doubts or probabilities."(17) It requires clear evidence which causes you to be convinced that the allegations sought to be proved are true.(18) Abuse of the privilege can be proved by the plaintiff by any one of three ways. To establish that defendant has abused, and thereby lost the privilege to communicate the defamatory statement, the plaintiff must prove, by clear and convincing evidence: (1) that defendant knew the statement was false or defendant acted in reckless disregard of its truth or falsity; or (2) the statement served a purpose contrary to the interests served by the qualified privilege; or (3) the defendant disseminated the statement excessively.(19) Let me explain each of those three ways that the qualified privilege may be abused and thereby lost.(20)
First, the privilege may be abused and lost if the plaintiff proves by clear and convincing evidence that the defendant knew the statement was false or acted in reckless disregard of the statement's truth or falsity. You will recall that I previously instructed you that knowledge of falsity or recklessness must be proven by a preponderance of evidence in order for you to find that defendant's statements were defamatory. However, in order for you to find that the defendant abused his/her/its privilege, the plaintiff must establish by the greater evidentiary standard of clear and convincing evidence that the defendant knew the statement was false or acted in reckless disregard of the statement's truth or falsity.(21)
Second, the privilege can be abused and thereby lost if the plaintiff proves by clear and convincing evidence that the statement served a purpose contrary to the interests of the qualified privilege.(22)
Plaintiff may show that a contrary purpose was served by presenting evidence about defendant's motivation. The privilege is lost if it is not made primarily for the purpose of furthering the interest which is entitled to protection.(23) As I have found, the interest which is entitled to protection in this case is:
>[Choose Appropriate Interest]:
(a) protecting defendant's lawful interests; or
(b) protecting the lawful interest of the person(s) to whom the allegedly defamatory statement was communicated; or
(c) informing those persons sharing a common interest of information which they are entitled to know by reason of their common interest; or
(d) lawfully protecting the well-being of defendant's immediate family member(s) or an immediate family member of the person to whom the statement was communicated.
For example, if the plaintiff proves by clear and convincing evidence that the defendant was primarily or chiefly motivated by ill will or spite toward the plaintiff in communicating the statement, then the privilege is abused and lost (even if defendant was partly motivated by the interests protected by the privilege).(24) Also, for example, if plaintiff proves by clear and convincing evidence that defendant was primarily or chiefly motivated by an objective, even if legitimate, which does not serve the purpose of the privilege, then the privilege is abused and lost.(25) However, the privilege is not lost if the defendant harbored ill will against the plaintiff or was motivated by objectives that did not serve the purpose of the privilege, if that ill will or objective was not the primary or chief motivating force behind the communication.(26)
Proving that the communication was chiefly or primarily motivated by ill will or other wrongful purpose is not the only way to show that the communication served a purpose contrary to the interests served by the qualified privilege. The privilege may also be abused and lost if the plaintiff proves by clear and convincing evidence that defendant did not reasonably believe the content of the statement to be necessary for the purpose for which the privilege was granted. Sometimes, this may involve a claim by a plaintiff that the defendant communicated more information than he/she/it could have believed reasonably necessary for the purpose for which the privilege was granted.(27)
Third, the privilege can be abused and thereby lost if the plaintiff proves by clear and convincing evidence that the defendant could not reasonably believe that the way he/she/it disseminated/published the statement was a proper means of communicating the information to the person who was privileged to receive it. This is called "excessive publication." Sometimes, a communication may reach persons who are not privileged to receive it, as well as those who do.(28) Whether that is excessive depends on the circumstances. For example, a letter may need to be typed and read by a secretary before transmittal to the privileged recipient; a broadcast or general release of information may reach persons without a privileged interest, but that may be the only reasonable way of also reaching the persons with a privileged interest.(29) To find excessive publication, you need to find by clear and convincing evidence that the defendant could not reasonably believe the method of communication/publication was a proper means of communicating.(30)
1. See Footnote 1 of the Public Defamation instructions (Charge 3.11A).
2. Except that when a qualified privilege exists, the plaintiff must prove the abuse of the qualified privilege by clear and convincing evidence. Erickson v. Marsh & McLennan, 117 N.J. 539, 565-566 (1990); Kass v. Great Express, Inc. 291 N.J. Super 10 (App. Div. 1996).
3. See Restatement (Second) of Torts, Section 580B; Bainhauer v. Manoukian, 215 N.J. Super. 9, 31-34, 42 fnt. 13 (App. Div. 1987).
4. See Restatement (Second) of Torts, Section 580B, comments g and h.
5. See, e.g., Gallo v. Princeton Univ., 281 N.J. Super. 134, 143 (App. Div. 1995) (describing circumstances giving rise to qualified privilege), certif. denied, 142 N.J. 453 (1995); Restatement (Second) of Torts, § 594 to 598A (1977) (describing circumstances giving rise to a qualified or conditional privilege).
6. Hawkings v. Harris, 141 N.J. 207, 216 (1995) (stating that whether a defendant is entitled to a privilege is a question of law) (absolute litigation privilege); Bainhauer v. Manoukian, supra, 215 N.J. Super. at 40.
7. Erickson v. Marsh & McLennan Co., supra, 117 N.J. at 566 (stating that abuse of privilege "is an issue normally reserved for the jury"); Bainhauer v. Manoukian, supra, 215 N.J. Super. at 40; Restatement (Second) of Torts, § 600.
8. Restatement (Second) of Torts, § 594. For example, in an employment setting, an employee or supervisor is privileged to make a defamatory statement about a co-employee, so long as the person to whom the statement is made has a need to know the information in order to protect the employer's lawful interest. Thus, an employee or supervisor is privileged in reporting to management his/her reasonable belief concerning any activity of an employee which is work-related.
9. For example, in an employment setting, a personnel manager is privileged to make a defamatory statement about a former employee to a prospective employer so long as the statement directly relates to the employee's qualifications for the job. See Restatement (Second) of Torts, § 595, cmt. i.
10. It is important to note that it is not necessary to the existence of this privilege that the defamatory statement be communicated for the protection of the common interest. For example, in an employment setting a partner may be informed of the reasons why an employee of the partnership was discharged, even though the employment is at will and thus the information is not essential to justify the discharge. See Restatement (Second) of Torts, § 596, cmt. c.
11. This privilege would arise, for example, where the defendant reasonably believes that his brother-in-law has AIDS and informs his sister of this. See Restatement (Second) of Torts, § 597, illus. 1.
12. Restatement (Second) of Torts, § 599.
13. See Kass v. Great Coastal Express, Inc., 152 N.J. 353 (1998), aff'g in part and rev'g in part, 291 N.J. Super. (10 App. Div. 1996).
14. Erickson v. Marsh & McLennan, supra, 117 N.J. at 565-566 establishes that in order to defeat the qualified privilege, plaintiff must show abuse by clear and convincing evidence.
15. In re Boardwalk Regency Casino License Application, 180 N.J. Super. 324, 399 (App. Div. 1981), mod. on other grounds, 90 N.J. 361, appeal dism., 459 U.S. 1081, 74 L.Ed.2d 927, 103 S.Ct. 562 (1982).
16. Aiello v. Knoll Golf Club, 64 N.J. Super. 156, 162 (App. Div. 1960); See Matter of Jobes, 108 N.J. 394, 407 (1987); State v. Hodge, 95 N.J. 369, 376 (1984).
17. Aiello v. Knoll Golf Club, supra, 164 N.J. Super. at 162.
18. See also Charge 1.19.
19. Kass v. Great Coastal Express, Inc., supra. 152 N.J. at 356 (setting forth three-part test and clear and convincing burden of proof); Williams v. Bell. Tel. Lab. Inc., 132 N.J. 109, 121 (1993) (setting forth three-part test).
20. The Appellate Division in Kass v. Great Coastal Express, Inc., supra, includes an in-depth discussion of qualified privilege and an analysis of the former Charge 3.11B. Note that Judge Kleiner has suggested Jury Questions in an appendix to the Appellate Division's opinion.
21. Kass v. Great Coastal Express, Inc., supra.
22. Id. at 357 (stating jury must be asked "to consider whether defendant's speech served some other purpose contrary to the interests of the privilege.").
23. Fees v. Trow, 105 N.J. 330, 341 (1987).
24. Kass v. Great Coastal Express, Inc., supra, 291 N.J. Super. at 22, 23; Restatement (Second) of Torts, § 603.
25. Fees v. Trow, 105 N.J. at 341 (qualified privilege lost if defendant motivated by ill motive or the "wrong" motive); Coleman v. Newark Morning Ledger Co., 29 N.J. 357, 373 (1959). For example, if defendant reported defamatory information about a co-worker to a supervisor not out of ill will toward the co-worker, but chiefly out of a desire to enhance the defendant's own changes for a promotion by removing a competitor, then the privilege would presumably be lost.
26. See, e.g., Lutz v. Royal Inc., Co. of Am., 245 N.J. Super. 480, 499-501 (App. Div. 1991) (stating that privilege not abused where defendant, even if motivated by some ill will, was not primarily or chiefly motivated by it).
27. See Gallo v. Princeton Univ., supra, 281 N.J. Super. at 148-49 (stating that there was no abuse of privilege where university officials were circumspect in release of defamatory information, only releasing details as reasonably necessary). See, generally, Bainhauer v. Manoukian, supra, 215 N.J. Super. at 43; Restatement (Second) of Torts, § 605.
28. According to Restatement (Second) of Torts, § 604, a plaintiff must establish two elements to prove abuse of the privilege by excessive publication: (1) the defendant knew that the communication would reach non-privileged recipients; and (2) the defendant did not have a reasonable belief that the method of communication was proper.
One who, upon an occasion giving rise to a conditional privilege for the publication of defamatory matter to a particular person or persons, knowingly publishes the matter to a person to whom its publication is not otherwise privileged, abuses the privilege unless he reasonably believes that the publication is a proper means of communicating the defamatory matter to the person to whom its publication is privileged. [Id.]
However, the Court in Gallo v. Princeton Univ., supra, Bainhauer v. Manoukian, supra, and Feggans v. Billington, 291 N.J. Super. 382, 399-400 (App. Div. 1996) had occasion only to focus on the second aspect of the test, that is, whether the defendant had a reasonable belief that the publication was a proper means of communicating. However, conceivably, a case could arise in which the defendant did not know that his/her communication would reach non-privileged recipients -- e.g., a person shouts to police officer about a presumed purse-snatcher without seeing or knowing the presence of bystanders. Regardless of whether the defendant had a reasonable belief that the publication was proper, there would be no excessive publication and consequent loss of the privilege under the Restatement.
29. Restatement (Second) of Torts, § 604, cmts. a and b (stating that it is not excessive publication where publication to persons lacking an interest in the statement is reasonably incidental to publication to persons who do have an interest, referring to examples such as publication to a secretary, publication to bystanders on a street when a person calls out to a police officer, and publication of a fraternal magazine which might be read by outsiders.
30. See Gallo v. Princeton Univ., supra, 281 N.J. Super. at 143-146 (stating that general release of report of staff misconduct was not excessive and quoting with approval decisions of other jurisdictions finding that publication through general news media may in some cases be a reasonable means for a non-profit corporation to communicate to its pool of donors). See also, Feggans v. Billington, supra, 291 N.J. Super. at 399-400 (stating that it was not excessive for workers to communicate to supervisor and to plaintiff's union representative where they "would have had a reasonable belief that it was proper"). It is not clear whether the plaintiff must show that the defendant in fact did not reasonably believe the communication was proper; or whether, regardless of what the defendant actually believed, the plaintiff must show, based on a more objective test, that the defendant could not have reasonably believed the communication proper under the circumstances. Although it is not entirely clear, it appears that the more objective test should be applied. See Feggans v. Billington, supra, 291 N.J. Super. at 399 (stating that a communication is excessive "where defendants could have no reasonable belief that the publication as ... appropriate means of communicating...."); Gallo v. Princeton Univ., supra, 281 N.J. Super. at 144 (quoting with approval a federal decision finding no excessive publication where "the publication ... was a reasonable means of communicating...."). But see Restatement (Second) of Torts, § 604 (stating that the privilege is lost unless "he [defendant] reasonably believes that the publication is a proper means of communicating....").
