CHARGE 3.11B — Page 1 of 12 PRIVATE DEFAMATION model jury charge

CHARGE 3.11B — Page 1 of 12 PRIVATE DEFAMATION model jury charge (03/2010; revised 06/2014)

NOTE TO JUDGE
The instructions set forth below apply only where 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 Supreme Court in Rocci v. Ecole Secondaire, 165 N.J. 149 (2000), expanded free speech protection to private persons, if the reasons are deemed to be “in the public interest or of legitimate public concern”. A plaintiff in those circumstances must prove “actual malice”; see Pitts v. Newark Bd. of Educ., 337 N.J. Super. 331 (2001); pecuniary loss (actual damage to reputation) damages will not be presumed. The rights of Plaintiffs in private defamation cases , distinguished from public defamation cases, came before the New Jersey Supreme Court in the cases of Senna v. Floriment, 196 N.J. 469 (2008) and W.J.A. v. D.A., 210 N.J. 229 (2012).
General Elements

1.

For [plaintiff] to recover damages from [defendant] for defamation, [plaintiff] must prove by a preponderance of the credible evidence that [defendant] communicated to someone other than [plaintiff] a false and defamatory statement2 of fact concerning [plaintiff] and that [defendant] had actual knowledge that the statement was false, or acted in reckless disregard of
1 See footnote 1 of the “Public Defamation” instructions (Model Civil Charge 3.11A), supra.
2 A defamatory statement may consist of libel or slander. Dairy Stores, Inc. v. Sentinel Publ'g Co., 104 N.J. 125, 133, 516 A.2d 220 (1986) (citing Prosser and Keeton on Torts § 111 at 771 (5th ed. 1984)); Rodney A. Smolla, Law of Defamation § 1:10 (2d ed. 2008).

CHARGE 3.11B — Page 2 of 12
its truth or falsity, or acted negligently in failing to ascertain the falsity of the statement.
So, for [plaintiff] to prevail, he/she must prove by a preponderance of the evidence3 the following elements: (1) that [defendant] made a defamatory statement of fact; (2) concerning [plaintiff]; (3) which was false; (4) which was communicated to at least one person other than [plaintiff]; and (5) with actual knowledge by [defendant] that the statement was false, or with reckless disregard by [defendant] of the statement’s truth or falsity, or with negligence [defendant] in failing to determine the falsity of the statement.4
2. Specific Elements
a. The statement must be a defamatory statement of fact. [Same

as for Public Defamation.]

2. The plaintiff must prove that the defamatory statement concerned the plaintiff. [Same as for Public Defamation.]
   
3. The plaintiff must prove that the defamatory statement is false.
   [Same as for Public Defamation.]
   
4. The plaintiff must prove that the defamatory statement was communicated to a person or persons other than the plaintiff. [Same as for Public Defamation.]
   

3

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 (1990); Kass v. Great Coastal Express, Inc., 291 N.J. Super. 10 (App. Div. 1996), aff’d in part, rev’d in part, 152 N.J. 353 (1998).
4 See Restatement (Second) of Torts, Section 580B; Bainhauer v. Manoukian, 215 N.J. Super. 9, 31-34, 42 n. 13 (App. Div. 1987).

CHARGE 3.11B — Page 3 of 12
e. [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.
This last element deals with [defendant’s] fault in communicating the defamatory statement. [Plaintiff] must prove one of the following: (a) that [defendant] communicated a defamatory statement which he/she actually knew to be false, or (b) 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) that [defendant] acted negligently in failing to ascertain the falsity of the statement prior to communicating it.
In determining if [defendant] acted negligently in failing to ascertain the falsity of the statement, you must determine that [defendant] failed to act as a reasonably prudent person would have acted under like circumstances. Consider whether [defendant] had reasonable grounds to believe that the statement was true, and whether [defendant] acted reasonably in checking on the truth or falsity of the statement communicating it. Consider, also, [defendant’s] investigation or lack of investigation of the accuracy of the statement, the thoroughness of that investigation, the nature and the interests of the persons to whom the statement was communicated, the extent of damage

CHARGE 3.11B — Page 4 of 12
that would be produced if the communication proved to be false, and whether

[defendant] had an honest but nonetheless mistaken belief in the truth statement.5

of the

3. Qualified Privilege

5
6

See Restatement (Second) of Torts, Section 580B, comments g and h.
See, e.g., Gallo v. Princeton Univ., 281 N.J. Super. 134, 143 (App. Div. 1995) (describing

NOTE TO JUDGE
In certain circumstances, the communication of a defamatory statement to another will be conditionally privileged – for example, 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.6 The question of whether a defamatory statement is conditionally privileged is for the court.7 If the court determines that the communication of the defamatory statement is conditionally privileged, the question of whether the privilege has been abused is for the jury.8 The following must be given where the court has determined that the statement is conditionally privileged but the jury must decide whether the privilege has been abused.

circumstances giving rise to qualified privilege), certif. denied, 142 N.J. 453 (1995);
Restatement (Second) of Torts, Sections 594 to 598A (1977) (describing circumstances giving rise to a qualified or conditional privilege).
7 Hawkins v. Harris, 141 N.J. 207, 216 (1995) (whether a defendant is entitled to a privilege is a question of law); Bainhauer v. Manoukian, supra at 40.
8 Erickson v. Marsh & McLennan Co., supra at 566 (abuse of privilege “is an issue normally reserved for the jury”); Bainhauer v. Manoukian, supra at 40; Restatement (Second) of Torts, Section 600.

CHARGE 3.11B — Page 5 of 12
Here, [defendant] has asserted a qualified privilege to make the statements which [plaintiff] claims are defamatory. In other words, [defendant] claims that, even if the communication was defamatory, [defendant] was entitled — privileged — to make the communication which he/she made. I have decided as a matter of law that such a privilege exists, 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,9 or (b) protecting the lawful interest of the person(s) to whom the allegedly defamatory statement was communicated,10 or (c) informing those persons sharing a common interest of information which they are entitled to know by reason of their common interest,11 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.]12
9 Restatement (Second) of Torts, Section 594. For example, 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 activity of an employee which is work- related.

10 For example, 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, Section 595, cmt. i. 11

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, Section 596, cmt. c.

12 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, Section 597, illus. 1.

CHARGE 3.11B — Page 6 of 12
This privilege is not absolute. It can be abused and lost. You must decide if the privilege was abused and lost. So, if you determine that the statements were defamatory, you must also consider whether [defendant] lost or abused the qualified privilege.13 If you find that [defendant] abused the qualified privilege, you may find in favor of plaintiff; if you find that [defendant] did not abuse the qualified privilege, you may not find for [plaintiff].14
[Plaintiff] must prove the first five elements of defamation by a preponderance of the evidence. On the issue of privilege, however, [plaintiff] bears a different and heavier burden of proof to prove that [defendant] has lost or abused the privilege to communicate the defamatory statement. Plaintiff must show by clear and convincing evidence, not merely by a preponderance of the evidence, that [defendant] abused the privilege.15
Clear and convincing evidence is evidence which produces in your minds a firm belief or conviction as to the truth of the allegations sought to be established.16 It must be “as clear, direct and weighty and convincing as to

13. 13  Restatement (Second) of Torts, Section 599.
    
14. 14  See Kass v. Great Coastal Express, Inc., supra.
    

15
plaintiff must show abuse by clear and convincing evidence.
16 In re Boardwalk Regency Casino License Application, 180 N.J. Super. 324, 399 (App. Div.

Erickson v. Marsh & McLennan, supra at 565-566: to defeat the qualified privilege,

CHARGE 3.11B — Page 7 of 12
enable either a judge or jury to come to a clear conviction, without hesitancy, of the truth of the precise facts in issue.”17 The clear and convincing standard of proof requires more than a “mere balancing of doubts or probabilities.”18 It is evidence which causes you to be convinced that the allegations sought to be proved are true.19
Abuse of the privilege can be proved by [plaintiff] in one of three ways. To prove that [defendant] abused and thereby lost the privilege to communicate the defamatory statement, [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 privilege; or (3) the defendant disseminated the statement excessively.20 I will now explain each of these ways that the qualified privilege may be abused and thereby lost.21
1981), modified on other grounds, 90 N.J. 361 (1982).
17 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).

18. 18  Aiello v. Knoll Golf Club, supra at 162.
    
19. 19  See also Model Civil Charge 1.19.
    
20. 20  Kass v. Great Coastal Express, Inc., supra 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).
21 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 Model Civil Charge 3.11B. One Appellate Judge has suggested Jury Questions in an appendix.

CHARGE 3.11B — Page 8 of 12
First, the privilege may be lost if [plaintiff] proves by clear and convincing evidence that [defendant] knew the statement was false or acted in reckless disregard of the statement’s truth or falsity. I earlier told you that knowledge of falsity or recklessness must be proven by a preponderance of evidence for you to find that a statement was defamatory. However, for you to find that [defendant] lost the privilege, [plaintiff] must establish by the higher evidentiary standard of clear and convincing evidence that [defendant] knew the statement was false or acted in reckless disregard of the statement’s truth or falsity.22
Second, the privilege can be lost if [plaintiff] proves by clear and convincing evidence that the statement served a purpose contrary to the interests of the qualified privilege.23
Third, the privilege can be lost if [plaintiff] shows 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.24

22. 22  Kass v. Great Coastal Express, Inc., supra.
    
23. 23  Id. at 357; Fees v. Trow, 105 N.J. 330, 341 (1987).
    
24. 24  Fees v. Trow, supra at 341.
    

CHARGE 3.11B — Page 9 of 12
I have ruled that the interest which is entitled to protection here is
[choose appropriate interest]:

1. (a)  protecting defendant’ s lawful interests; or
   
2. (b)  protecting the lawful interest of the person(s) to whom the allegedly defamatory statement was communicated; or
   
3. (c)  informing those persons sharing a common interest of information which they are entitled to know by reason of their common interest; or
   
4. (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 [plaintiff] proves by clear and convincing evidence that [defendant] was primarily or chiefly motivated by ill will or spite toward [plaintiff] in communicating the statement, the privilege is lost (even if [defendant] was partly motivated by the interests protected by the privilege).25 If [plaintiff] proves by clear and convincing evidence that [defendant] was primarily or chiefly motivated by an intent even if legitimate, which does not serve the purpose of the privilege, the privilege is abused and lost.26 However,
25 Kass v. Great Coastal Express, Inc., supra at 22, 23; Restatement (Second) of Torts, Section 603.
26 Fees v. Trow, supra at 341 (qualified privilege lost if defendant motivated by ill motive or “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.

CHARGE 3.11B — Page 10 of 12
even if [defendant] harbored ill will against [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, the privilege will not be lost.27
Proving that the communication was chiefly or primarily motivated by ill will or other wrongful purpose is not the only way to show abuse of the qualified privilege. The privilege may also be abused and lost if [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 defendant could have believed reasonably necessary for the legitimate purposes of the privilege.28
Third, the privilege can be lost if [plaintiff] proves by clear and convincing evidence that [defendant] could not reasonably believe that the way that [defendant] disseminated the statement was a proper means of communicating the information to the person who was privileged to receive it.
27 See, e.g., Lutz v. Royal Ins. Co. of Am., 245 N.J. Super. 480, 499-501 (App. Div. 1991).
28
See Gallo v. Princeton Univ., supra 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 at 43; Restatement (Second) of Torts, Section 605.

CHARGE 3.11B — Page 11 of 12
This is called “excessive publication.” Sometimes, a communication may reach persons who are not privileged to receive it, as well as those who do.29 Whether that is excessive depends on the circumstances. For example, a letter may be typed and read by a secretary before transmittal to the privileged recipient; a general release of information may reach persons without a privileged interest where such a release is only reasonable way of reaching those with a privileged interest.30 To find excessive publication, you must find by clear and convincing
29 According to Restatement (Second) of Torts, Section 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, Gallo v. Princeton Univ., supra, Bainhauer v. Manoukian, supra, and Feggans v. Billington, 291 N.J. Super. 382, 399-400 (App. Div. 1996), focused only on the second aspect of the test - whether the defendant had a reasonable belief that the publication was a proper means of communicating. 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 about a bystander. There, regardless of whether 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.
30 Restatement (Second) of Torts, Section 604, cmts. a and b (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, 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).

CHARGE 3.11B — Page 12 of 12
evidence that [defendant] could not reasonably believe the method of communication/publication was a proper means of communicating.31

31
See Gallo v. Princeton Univ., supra at 143-146 (general release of report of staff misconduct was not excessive and 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 at 399-400 (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 unclear whether 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. It appears, however, that the more objective test should be applied. See Feggans v. Billington, supra at 399 (a communication is excessive where defendants could have no reasonable belief that the publication was appropriate means of communicating.); Gallo v. Princeton Univ., supra 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, Section 604 (stating that the privilege is lost unless “he [defendant] reasonably believes that the publication is a proper means of communicating....”). 

PUBLIC DEFAMATION model jury charge 3.11A

 PUBLIC DEFAMATION model jury charge 3.11A                 

NOTE TO JUDGE

The instructions set forth below apply only where the plaintiff is a public official, public figure, or where the plaintiff is a private person but the defamatory statements involve a matter of legitimate public concern.  See Berkery v. Kinney, 397 N.J. Super. 222 (App. Div. 2007), certif. denied, 194 N.J. 445 (2008) in which the court held that once a person becomes a public figure, even if he/she subsequently adopts a private lifestyle, he/she remains a public figure thereafter for purposes of later commentary or treatment of that commentary.  See Footnote 1 below for the cases defining these terms.

1.             General Element

For you to find that [plaintiff] is entitled to recover damages from [defendant] for defamation, you must find by clear and convincing evidence^[1] that [defendant] communicated to a person other than [plaintiff] a false and defamatory statement^[2] of fact concerning [plaintiff] with actual knowledge that the statement was false or with reckless disregard of its truth or falsity, thereby causing [plaintiff] to incur actual damages.

[Plaintiff] must prove five elements by clear and convincing evidence to prevail here.  These five elements are:  (1) that [defendant] made a defamatory statement of fact; (2) concerning [plaintiff]; (3) which was false and (4) which was communicated to at least one person other than [plaintiff] (5) with [defendant’s] actual knowledge that the statement was false or with [defendant’s] reckless disregard of the statement’s truth or falsity.  I will now explain each of these five elements.

2.      Elements

a.      That [defendant] made a defamatory statement of fact.

A defamatory statement is a statement of fact which is injurious to the reputation of [plaintiff], or which exposes [plaintiff] to [choose applicable category] hatred, contempt or ridicule, or to a loss of the good will and confidence felt toward him/her by others, or which has a tendency to injure him/her in his/her trade or business.^[3] 

To be defamatory, the statement must be a statement of fact.  Statements of opinion are not actionable.  You must not consider them in any way.^[4]

Here, the statement of fact alleged to have been made by [defendant] is ___________________.  This may be interpreted in two ways:   First, it may be understood to mean ______________________.   This meaning is clearly defamatory to [plaintiff] if it exposed him/her to the contempt and ridicule of others; it is in this sense that [plaintiff] contends that it was generally understood.  The second meaning, however, is _______________.  In this sense, of course, the statement is innocent and non‑defamatory, and it is in this sense that [defendant] contends it was understood.^[5]

You must determine, in light of all the evidence, if the words used by [defendant] were understood in their defamatory sense by the reasonable person who read [heard] them.  In this regard, you are, of course, free to consider the common and ordinary meaning of the words used in the context of the statement, but bear in mind that your deliberations are not to be governed solely by what you yourselves believe to be the meaning of the language used nor, indeed, by what you personally believe [defendant] intended to be understood.  The test is what you find from all the evidence the words were understood to mean by the reasonable person who read [heard] them.^[6]

b.             The plaintiff must prove that the defamatory statement concerned the plaintiff.

The second element that plaintiff must prove by a preponderance of the evidence is that the defamatory statement was read [heard] and understood by at least one other person to concern [plaintiff].^[7]  The defamatory statement read [heard] by at least one person other than [plaintiff] was reasonably understood by them to refer to [plaintiff].  The actual naming of [plaintiff] is not necessary so long as those who read [heard] the statement understood that [plaintiff] was the subject of the statement.  You are not to decide   whether [defendant] intended the statement to refer to [plaintiff]; the issue is whether those persons reading [hearing] the statement reasonably understood the statement to refer to [plaintiff].

c.       Plaintiff must prove that the defamatory statement is false.

The third element that [plaintiff] must prove by a preponderance of the evidence is that the defamatory statement was false.^[8]  Here, [plaintiff] contends the defamatory statement is false; [defendant] denies that the statement is false. You must determine if the statement is true or false.  In this regard, it is not necessary for you to find the statement true or false in every detail.  It is enough if the defamatory gist or sting of the statement is substantially true or substantially false. In determining the truth or falsity of the statement, you must consider the entire context of the statement; words or phrases must not be isolated or taken out of context.

d.             Plaintiff must prove that the defamatory statement was communicated to a person or persons other than the plaintiff. 

         The fourth element [plaintiff] must prove by a preponderance of the evidence is that the defamatory statement was communicated, orally or in writing, to at least one person other than [plaintiff].^[9]  Therefore, it is not necessary that the defamatory statement be communicated to a large or substantial group.  It is enough that it is communicated to a single person other than [plaintiff], so long as that recipient     understood the statement in its defamatory sense.^[10]

e.             Plaintiff must prove that defendant communicated the false statement to others with the actual knowledge that it was false or with a reckless disregard of whether it was true or false.

The fifth element plaintiff must prove by a preponderance of the evidence is that, when the statement was communicated to at least one other person by [defendant], [defendant] knew that the statement was false or acted in reckless disregard of whether it was true or false.^[11]   This means that [defendant] must have actually known that the defamatory statement regarding [plaintiff] was false when he/she communicated it, or that [defendant] communicated the defamatory statement with a high degree of awareness that it was probably false, or that [defendant] truly had serious doubts as to the truth of the defamatory statement when he/she communicated it.

3.      Burden of Proof

[Plaintiff] must prove each of the five elements I have just explained to you by clear and convincing evidence.  Clear and convincing evidence means that proofs should produce in your minds a firm belief or conviction as to the truth of the claims made by [plaintiff].  The evidence must be as clear, direct and weighty and convincing as to enable a jury to come to a clear conviction, without hesitancy, of the truth of precise facts in issue.^[12]  Clear and convincing is a standard of proof which requires more than a mere balancing of doubts or probabilities.  It requires clear evidence which causes you to be convinced that the allegations sought to be proved are true.

If [plaintiff] proved each of the five elements I have outlined by clear and convincing evidence, [plaintiff] has met his/her burden of proof and is entitled to your verdict.  If, however, [plaintiff] has failed to prove by clear and convincing evidence any of these elements, you must return a verdict for [defendant].

---

^[1]  The burden of proof imposed depends upon and is tied to the status of the plaintiff and the subject matter of the defamatory statement.  Where the plaintiff is a public official or a “public figure” and the subject matter of the defamatory statement is a matter of legitimate public concern, the standard of proof is “clear and convincing” evidence.  See New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed. 2d 83 (1964); Gertz v. Robert Welch, Inc., 418 U.S. 323, 945 S.Ct. 2997, 41 L.Ed. 2d 789 (1974); Lawrence v. Bauer Pub. Co., 89 N.J. 451 (1982); Marchiano v. Sandman, 178 N.J. Super. 171 (App. Div.), certif. denied, 87 N.J. 392 (1981); Vassallo v. Bell, 221 N.J. Super. 347 (App. Div. 1987) [involving a “limited purpose” public figure].  Where plaintiff is a private figure and the subject matter of the defamatory statement is a matter of legitimate public concern, the standard of proof is also clear and convincing. See Pitts v. Newark Bd. of Educ., 337 N.J. Super. 331 (2001); Burke v. Deiner, 97 N.J. Super. 465 (1984); Costello v. Ocean County Observer, 136 N.J. 595 (1994).  The trial judge must make the determination as to the status of the plaintiff and whether the statements com­plained of by a private person are a matter of legitimate public concern.  See Lawrence v. Bauer Pub. Co., supra; Dairy Stores, Inc. v. Sentinel Pub. Co., 104 N.J. 125 (1986); Rocci v. Ecole Secondaire, 165 N.J. 149 (2000) (The Supreme Court expands the definition of what is deemed to be “of public concern”). See also Senna v Floriment, 196 N.J. 469 (2008)

[2] A defamatory statement may consist of libel or slander. Dairy Stores, Inc. v. Sentinel Publ'g Co., 104 N.J. 125, 133, 516 A.2d 220 (1986) (citing Prosser and Keeton on Torts § 111 at 771 (5th ed. 1984)); Rodney A. Smolla, Law of Defamation § 1:10 (2d ed. 2008).

^[3]  See Maressa v. New Jersey Monthly, 89 N.J. 176 (1982), certif. denied, 459 U.S. 907, 103 S.Ct. 211, 74 L.Ed. 2d 169 (1982); Dairy Stores, Inc. v. Sentinel Pub. Co., supra; Restatement (Second) of Torts, Section 559 (1977).

^[4]  The trial court must preliminarily determine whether any of the statements complained of are statements of opinion.  If there are any statements of opinion in the publication complained of, the jury must be instructed that these statements are privileged and are not to be considered in any way in their deliberations.  See Gertz v. Robert Welch, Inc., supra; Kotlikoff v. The Community News, 89 N.J. 62 (1983); Maressa v. New Jersey Monthly, supra; Dunn v. Gannett New York Newspapers, Inc., 833 F. 2d 446 (3d Cir. 1987); Karnell v. Campbell, 206 N.J. Super. 81 (App. Div. 1985); Restatement (Second) of Torts, Section 566 (1977).

^[5]  The trial court must preliminarily determine whether the statement is defamatory on its face.  Only when the court finds that a statement is capable of both a defamatory and non‑defamatory interpretation is the issue to be submitted to the jury. See Lawrence v. Bauer Pub. Co., supra; Romaine v. Kallinger, 109 N.J. 282, 290‑91 (1988); State v. Browne, 86 N.J. Super. 217 (App. Div. 1965); Sokolary v. Edlin, 65 N.J. Super. 542 (App. Div. 1961); Mosler v. Whelan, 48 N.J. Super. 491 (App. Div.), rev’d, 28 N.J. 397 (1958).  When the statement is only capable of a defamatory interpretation, the plaintiff need not establish this element and it should be eliminated from the instruction.

^[6]  See Restatement (Second) of Torts, Section 563 (1977).

^[7]  See Gnapinsky v. Goldyn, 23 N.J. 243 (1957); Scelfo v. Rutgers Univ., 116 N.J. Super. 403 (Law Div. 1971); Dijkstra v. Westerink, 168 N.J. Super. 128 (App. Div. 1978); Restatement (Second) of Torts, Sec. 564 (1977).  Where the defamatory statement concerns a group or class of persons of which plaintiff is a member, the plaintiff must establish some reasonable application of the words to himself/herself.  See Mick v. American Dental Ass’n, 49 N.J. Super. 262, 285‑87 (App. Div. 1958); Restatement (Second) of Torts, Section 564A (1977).

^[8]  See Pitts v. Newark Bd. of Educ., supra; Rocci v. Ecole Secondaire, supra (where the Supreme Court stated that defamation exists where the defendant otherwise acted with reckless disregard of truth); also see footnote 10 concerning the fifth element as to definition in defamation law of the term “actual malice.”  Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767, 106 S.Ct. 1558, 89 L.Ed. 2d 783 (1986); Sisler v. Gannett Co. Inc., 104 N.J. 256 (1986); Herrmann v. Newark Morning Ledger Co., 48 N.J. Super. 420 (App. Div. 1958), aff’d on reh’g, 49 N.J. Super. 551 (App. Div. 1958); LaRocca v. New York News, Inc., 156 N.J. Super. 59 (App. Div. 1978); Scelfo v. Rutgers Univ., supra; Dorney v. Dairymen’s League Co‑op. Ass’n, 149 F. Supp. 615 (D. N.J. 1957); Restatement (Second) of Torts, Section 581A (1977).

^[9]  See Gnapinsky v. Goldyn, supra at  252‑53; Restatement (Second) of Torts, Section 577 (1977).  Note that the communication of a defamatory statement to a third person may be qualifiedly privileged.  See text and footnotes on Qualified Privilege under “Private Defamation” (Charge 3.11B), infra.

^[10]  See Comments b and c to Restatement (Second) of Torts, Sec. 577 (1977).  See Rocci v. Ecole Secondaire, supra; Pitts v. Newark Bd. of Educ., supra.  (The courts have held that a plaintiff should not be able to recover for the harm flowing from republication of a defamatory statement when the plaintiff himself/herself knowingly causes the material to be distributed).

^[11]  The plaintiff must prove “actual malice” which exists when a defendant has actual knowledge that the statement he/she is making is false or when he/she entertains serious doubts as to its truth. See Pitts v. Newark Bd. of Educ., supra; Burke v. Deiner, supra; see New York Times v. Sullivan, supra; Garrison v. Louisiana, 379 U.S. 64, 85 S.Ct. 209, 13 L.Ed. 2d 125 (1964); St. Amant v. Thompson, 390 U.S. 727, 88 S.Ct. 1323, 20 L.Ed. 2d 262 (1968); Lawrence v. Bauer Pub. Co., supra; Marchiano v. Sandman, supra; Binkewitz v. Allstate Ins. Co., 222 N.J. Super. 501 (App. Div.), certif. denied, 113 N.J. 378 (1988).

^[12]  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).