2020 Georgia Code
Title 51 - Torts
Chapter 5 - Libel and Slander
§ 51-5-5. Inference of Malice; Rebuttal Thereof; Effect of Rebuttal

In all actions for printed or spoken defamation, malice is inferred from the character of the charge. However, the existence of malice may be rebutted by proof. In all cases, such proof shall be considered in mitigation of damages. In cases of privileged communications, such proof shall bar a recovery.

(Orig. Code 1863, § 2917; Code 1868, § 2924; Code 1873, § 2975; Code 1882, § 2975; Civil Code 1895, § 3833; Civil Code 1910, § 4429; Code 1933, § 105-706.)

- For article, "Defamation in Georgia Local Government Law: A Brief History," see 16 Ga. L. Rev. 627 (1982). For comment discussing admissibility of evidence of malice not previously pleaded, in light of Van Gundy v. Wilson, 84 Ga. App. 429, 66 S.E.2d 93 (1951), see 14 Ga. B. J. 358 (1952).

ANALYSIS

• General Consideration
• Cases Involving Public Figures

General Consideration

Constitutionality.

- The appellant court would not hold that O.C.G.A. § 51-5-5 was unconstitutional because it allows "malice" to be "inferred from the character of the charge" since that provision clearly relates to O.C.G.A. § 51-5-1, which requires that a statement be "false and malicious" in order to constitute libel. This means malice in the common-law sense, not actual malice. Straw v. Chase Revel, Inc., 813 F.2d 356 (11th Cir.), cert. denied, 484 U.S. 856, 108 S. Ct. 164, 98 L. Ed. 2d 118 (1987).

Malice in law of defamation may be used in two senses: First, in a special or technical sense to denote absence of lawful excuse or to indicate absence of privileged occasion. Such malice is known as "implied" malice or "malice in law." There is no imputation of ill will with intent to injury. Second, "malice" involving intent of mind and heart, or ill will against a person, and is classified as "express malice" or "malice in fact." Atlanta Journal Co. v. Doyal, 82 Ga. App. 321, 60 S.E.2d 802 (1950).

Malice in constitutional sense is distinguished from common-law sense of ill will, hatred or charges calculated to injure. Williams v. Trust Co., 140 Ga. App. 49, 230 S.E.2d 45 (1976).

Constitutional malice does not involve the motives of the speaker or publisher, though they may be wrong, but rather it is one's awareness of actual or probable falsity, or one's reckless disregard for their falsity. Williams v. Trust Co., 140 Ga. App. 49, 230 S.E.2d 45 (1976).

- The publication of a libel raises a presumption of malice. Holmes v. Clisby, 121 Ga. 241, 48 S.E. 934, 104 Am. St. R. 103 (1904).

The publication of a statement in writing, which is untrue, and which may tend to injure the reputation of another and expose one to public hatred, contempt, or ridicule, will be presumed to have been a malicious publication until sufficient evidence has been produced to rebut the presumption. Southland Publishing Co. v. Sewell, 111 Ga. App. 803, 143 S.E.2d 428 (1965).

When language used is actionable per se, legal malice is implied unless utterance is privileged, in which case the plaintiff must establish malice. Duchess Chenilles, Inc. v. Masters, 84 Ga. App. 822, 67 S.E.2d 600 (1951).

Proof that writing is false, and that the writing maligns private character or mercantile standing of another, is itself evidence of legal malice. Montgomery v. Pacific & S. Co., 131 Ga. App. 712, 206 S.E.2d 631, aff'd, 233 Ga. 175, 210 S.E.2d 714 (1974), overruled on other grounds, Diamond v. American Family Corp., 186 Ga. App. 681, 368 S.E.2d 350 (1988).

Publication coming within definition of former Code 1933, § 105-703 (see now O.C.G.A. § 51-5-2) was actionable without any averment of actual malice on the part of the defendant. Southland Publishing Co. v. Sewell, 111 Ga. App. 803, 143 S.E.2d 428 (1965).

Actual malice is not presumed, and is matter of proof by the plaintiff. Williams v. Trust Co., 140 Ga. App. 49, 230 S.E.2d 45 (1976).

Manner of statement is material upon question of malice, and if the facts believed to be true are exaggerated, overdrawn, or colored to the detriment of the plaintiff, or are not stated fully and fairly with respect to the plaintiff, the court or jury may properly consider these circumstances as tending to prove actual malice. Atlanta Journal Co. v. Doyal, 82 Ga. App. 321, 60 S.E.2d 802 (1950).

While one may, on a privileged occasion and without malice, publish to the interested persons what may be false, if one honestly believes it to be true, one is not by this rule given a license to overdraw, exaggerate, or to color the facts of one's communication. Atlanta Journal Co. v. Doyal, 82 Ga. App. 321, 60 S.E.2d 802 (1950).

To prove actual malice there must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of the defendant's publication. Williams v. Trust Co., 140 Ga. App. 49, 230 S.E.2d 45 (1976).

Proof is supplied when totality of circumstances suggests actual malice, even though the publisher may testify that the publisher acted in good faith (or without malice). Melton v. Bow, 145 Ga. App. 272, 243 S.E.2d 590, aff'd, 241 Ga. 629, 247 S.E.2d 100, cert. denied, 439 U.S. 985, 99 S. Ct. 576, 58 L. Ed. 2d 656 (1978).

Constitutional standard demands that proof of actual malice be made with convincing clarity. Williams v. Trust Co., 140 Ga. App. 49, 230 S.E.2d 45 (1976).

"Reckless disregard of truth" is equivalent of actual malice. Melton v. Bow, 145 Ga. App. 272, 243 S.E.2d 590, aff'd, 241 Ga. 629, 247 S.E.2d 100, cert. denied, 439 U.S. 985, 99 S. Ct. 576, 58 L. Ed. 2d 656 (1978).

Knowledge of the falsity of the statement, a reckless disregard of whether it was false or true, or a serious doubt as to its truth, is imperative to proof of malice in the constitutional sense as to statements within the First Amendment immunity. Williams v. Trust Co., 140 Ga. App. 49, 230 S.E.2d 45 (1976).

Actual malice is constitutional issue to be decided initially by trial judge vis-a-vis motions for summary judgment and directed verdict, applying the test of actual knowledge or reckless disregard of the truth. Williams v. Trust Co., 140 Ga. App. 49, 230 S.E.2d 45 (1976); Morton v. Stewart, 153 Ga. App. 636, 266 S.E.2d 230 (1980).

If jury finds that actual malice exists, punitive damages may be awarded. Atlanta Journal Co. v. Doyal, 82 Ga. App. 321, 60 S.E.2d 802 (1950).

Existence of malice may be rebutted by proof, want of actual malice then going in mitigation of damages. Atlanta Journal Co. v. Doyal, 82 Ga. App. 321, 60 S.E.2d 802 (1950).

Lack of malice in cases of privileged communications will bar recovery. Rucker v. Gandy, 158 Ga. App. 104, 279 S.E.2d 259 (1981).

Since the defendant's direct testimony was that the defendant was motivated to report the defendant's concerns about the level of emergency room care solely out of a sense of duty and concern for patient safety and that the defendant bore no animus against the plaintiff, when there was no other evidence of ill will, and when there was a showing of privilege in the disclosure of patient information, the plaintiff's failure to show express malice made summary judgment against the plaintiff proper. Dominy v. Shumpert, 235 Ga. App. 500, 510 S.E.2d 81 (1998).

Medical director could not recover for slander allegedly made when lab technician reported to lab director, and lab director reported to hospital administrator that the medical director had been diagnosed with an infectious disease as such communications were privileged and the medical director had not shown the privilege was defeated by actual malice as the communications were made so that people could protect themselves and not to harm the medical director. Nelson v. Glynn-Brunswick Hosp. Auth., 257 Ga. App. 571, 571 S.E.2d 557 (2002).

Proof that communication is privileged rebuts prima facie presumption of malice in law. Atlanta Journal Co. v. Doyal, 82 Ga. App. 321, 60 S.E.2d 802 (1950).

Effect of privilege is to require plaintiff to prove actual malice. Atlanta Journal Co. v. Doyal, 82 Ga. App. 321, 60 S.E.2d 802 (1950).

Proof of falsity and legal malice cannot destroy defense of absolute privilege, but actual malice will remove a conditional privilege. Land v. Delta Airlines, 147 Ga. App. 738, 250 S.E.2d 188 (1978).

If privilege is not absolute, but conditional only, existence of express malice would render the libel actionable. Atlanta Journal Co. v. Doyal, 82 Ga. App. 321, 60 S.E.2d 802 (1950).

- The only difference made by the statute between a communication not privileged and one that is privileged is that, in the former or unprivileged class, one of malice goes in mitigation of damages, while in the latter class of privileged communications, absence of malice constitutes a bar to recovery. These matters are to be submitted to and passed on by the jury, the court taking care to instruct the jury as to the law governing their finding. Rogers v. Adams, 98 Ga. App. 155, 105 S.E.2d 364 (1958).

- Malice is an "aggravating circumstance." The existence of malice would not be conclusively rebutted by proof of a retraxit, accompanied by an explanation that the words were spoken merely in jest, and only for the purpose of "teasing" the person to whom they were addressed. Barker v. Green, 34 Ga. App. 574, 130 S.E. 599 (1925).

- Georgia law puts the burden of proving falsity on the plaintiff. Only the element of malice may be inferred under O.C.G.A. § 51-5-5. Straw v. Chase Revel, Inc., 813 F.2d 356 (11th Cir.), cert. denied, 484 U.S. 856, 108 S. Ct. 164, 98 L. Ed. 2d 118 (1987).

- When the utterance is privileged, the burden is on the plaintiff to establish malice. Lester v. Thurmond, 51 Ga. 118 (1874); Hendrix v. Daughtry, 3 Ga. App. 481, 60 S.E. 206 (1908); Ivester v. Coe, 33 Ga. App. 620, 127 S.E. 790 (1925).

When the defendant has made prima facie showing of privilege the burden is then upon the plaintiff to establish that the publication was made with actual malice. WSAV-TV, Inc. v. Baxter, 119 Ga. App. 185, 166 S.E.2d 416 (1969), overruled on other grounds, Diamond v. American Family Corp., 186 Ga. App. 681, 368 S.E.2d 350 (1988) (overruling application of actual malice standard to non-public figure plaintiff).

- Whether a communication which is conditionally privileged is used with a bona fide intent to protect the speaker's or writer's own interests when it is concerned, or whether such communication is uttered maliciously is a question of fact for the jury to determine. Lamb v. Fedderwitz, 72 Ga. App. 406, 33 S.E.2d 839 (1945).

- In cases against a media defendant involving either a public figure plaintiff, or a private plaintiff seeking punitive damages, actual malice must be proven; it may not be presumed. In such cases, the potential constitutional pitfalls posed by O.C.G.A. § 51-5-5 may be avoided by the trial judge, who need only explain what common-law malice means under that section, and carefully distinguish it from actual malice. Straw v. Chase Revel, Inc., 813 F.2d 356 (11th Cir.), cert. denied, 484 U.S. 856, 108 S. Ct. 164, 98 L. Ed. 2d 118 (1987).

- A company's announcement to its customers that the plaintiff had retired, when in fact the plaintiff had been terminated by the company, did not constitute defamation or libel; moreover, they were privileged, made in the best interests of the company, and were not shown to have been made with malice or in bad faith. Kitfield v. Henderson, Black & Greene, 231 Ga. App. 130, 498 S.E.2d 537 (1998).

- When the court never charged the jury that only a finding of actual malice would support an award of punitive damages in a libel action against a media defendant, the case must be reversed and remanded for a new trial, for a redetermination of the actual malice issue and the appropriate amount, if any, of punitive damages, but the compensatory award will be affirmed. Straw v. Chase Revel, Inc., 813 F.2d 356 (11th Cir.), cert. denied, 484 U.S. 856, 108 S. Ct. 164, 98 L. Ed. 2d 118 (1987).

- Evidence which may be insufficient to so establish good faith as to sustain a plea of privilege in an action for a libel may still be sufficient to rebut the inference of malice and mitigate the damages. Holmes v. Clisby, 121 Ga. 241, 48 S.E. 934, 104 Am. St. R. 103 (1904).

- In a suit between feuding neighbors, the trial court properly held that the words spoken by one against the other, which the latter alleged were disparaging against America's loss on September 11, 2001, were not slanderous, as they were an expression of pure opinion, which was neither provable as true nor as false; as a result, the neighbor who uttered the allegedly slanderous comments was entitled to summary judgment on the other's claim of slander per se. Bullard v. Bouler, 286 Ga. App. 218, 649 S.E.2d 311 (2007).

- Judgment in favor of the plaintiffs in a libel action was upheld because the defendants published newspaper advertisements that offered a reward for the return of the trailer purchased by the plaintiffs, stating that the trailer was taken without proper ownership, documentation, and payment and was last seen with the plaintiffs and the plain import of those words imputed the criminal offense of theft to the plaintiffs, a crime for which the plaintiffs had not been charged or found guilty. Cate v. Patterson, 354 Ga. App. 108, 840 S.E.2d 489 (2020).

Cited in Hugh v. McCarty, 40 Ga. 444 (1869); Atlanta Post Co. v. McHenry, 26 Ga. App. 341, 106 S.E. 324 (1921); Conklin v. Augusta Chronicle Publishing Co., 276 F. 288 (5th Cir. 1921); Abernathy v. News Publishing Co., 45 Ga. App. 693, 165 S.E. 924 (1932); Lamb v. Fedderwitz, 71 Ga. App. 249, 30 S.E.2d 436 (1944); Shiver v. Valdosta Press, 82 Ga. App. 406, 61 S.E.2d 221 (1950); Sheley v. Southeastern Newspapers, Inc., 87 Ga. App. 167, 73 S.E.2d 211 (1952); Davidson v. Walter, 93 Ga. App. 290, 91 S.E.2d 520 (1956); Rosanova v. Playboy Enters., Inc., 411 F. Supp. 440 (S.D. Ga. 1976); Brown v. Scott, 151 Ga. App. 366, 259 S.E.2d 642 (1979); Cleveland v. Greengard, 162 Ga. App. 201, 290 S.E.2d 545 (1982); Lincoln Log Homes Mktg., Inc. v. Holbrook, 163 Ga. App. 592, 295 S.E.2d 567 (1982); Hayes v. Irwin, 541 F. Supp. 397 (N.D. Ga. 1982); Mays v. Hospital Auth., 582 F. Supp. 425 (N.D. Ga. 1984); Peoples v. Guthrie, 199 Ga. App. 119, 404 S.E.2d 442 (1991); Mills v. Ellerbee, 177 Bankr. 731 (Bankr. N.D. Ga. 1995); Strange v. Henderson, 223 Ga. App. 218, 477 S.E.2d 330 (1996); No Witness, LLC v. Cumulus Media Partners, LLC, F. Supp. 2d (N.D. Ga. Nov. 13, 2007).

Defamed public officials and public figures can recover only upon showing of actual malice, i.e., only on clear and convincing proof that the defamatory falsehood was made with knowledge of the falsity or with reckless disregard for the truth. Williams v. Trust Co., 140 Ga. App. 49, 230 S.E.2d 45 (1976).

The defamatory statement against a public figure may be false but it is still not actionable unless the statement was uttered with knowledge of the statement's falsity or in reckless disregard for the truth. Williams v. Trust Co., 140 Ga. App. 49, 230 S.E.2d 45 (1976).

A public figure might be allowed a civil remedy for a statement about the public figure only if the speaker knew the speaker's statement was false, or entertained serious doubts as to whether the statement was true or false. Williams v. Trust Co., 140 Ga. App. 49, 230 S.E.2d 45 (1976).

If prima facie showing is made that there did not exist actual malice in constitutional sense, burden is cast upon plaintiff public figure to come forward with proof that the statements were made with knowledge that the statements were false or with reckless disregard of whether the statements were false or not. If the plaintiff fails in this duty of rebuttal, summary judgment is proper. Williams v. Trust Co., 140 Ga. App. 49, 230 S.E.2d 45 (1976).

- When the plaintiff is a public figure, First Amendment concerns arise, and, consequently, a constitutional, rather than a common-law or statutory, measure of actual malice is used in an action for libel or slander. Smith v. Turner, 764 F. Supp. 632 (N.D. Ga. 1991).

- The speaker's motives (though malicious in the statutory or common-law sense) or what a reasonable man in the same circumstances may have said, or the lack of or inadequacy of prior investigation are all inapplicable to the question of actual malice in the constitutional sense as to defamation of a public figure. Williams v. Trust Co., 140 Ga. App. 49, 230 S.E.2d 45 (1976).

- Since the defendant asserted that the plaintiff was a "public figure" in the business community by virtue of the plaintiff being the publisher of a business newsletter, it was held that at the time that the defendant's offensive editorial appeared, the plaintiff's magazine had a limited circulation of 750 among a small sector of the business community and this does not make the plaintiff a public figure in the general sense, nor could it be said that the plaintiff injected oneself into a public controversy by truthfully reporting that the defendant's company had filed for bankruptcy since the company was in a Chapter 11 reorganization. Straw v. Chase Revel, Inc., 813 F.2d 356 (11th Cir.), cert. denied, 484 U.S. 856, 108 S. Ct. 164, 98 L. Ed. 2d 118 (1987).

- Unless the court finds, on the basis of pretrial affidavits, depositions or other documentary evidence, that the plaintiff public figure can prove actual malice, it should grant summary judgment for the defendant. Williams v. Trust Co., 140 Ga. App. 49, 230 S.E.2d 45 (1976); Morton v. Stewart, 153 Ga. App. 636, 266 S.E.2d 230 (1980).

When public figures bring defamation actions, summary judgment, rather than a trial on the merits, is a proper vehicle for affording constitutional protection, when there is no substantive basis for a finding of knowing falsity or reckless disregard. Williams v. Trust Co., 140 Ga. App. 49, 230 S.E.2d 45 (1976).

To survive a defendant's motion for summary judgment in an action for libel and slander, a plaintiff who is a public figure must produce evidence that the speaker knew the charge was false or at least had serious doubts concerning its truth. Smith v. Turner, 764 F. Supp. 632 (N.D. Ga. 1991).

RESEARCH REFERENCES

Am. Jur. 2d.

- 50 Am. Jur. 2d, Libel and Slander, §§ 4, 5, 9, 25, 27, 33 et seq.

- 53 C.J.S., Libel and Slander, §§ 7, 83 et seq.

- What constitutes variance between pleading and proof of defamatory words, 2 A.L.R. 367.

May actual malice which will defeat conditional privilege in libel or slander coexist with belief in truth of imputation, 18 A.L.R. 1160.

Presumption and burden of proof regarding mitigation of damages, 134 A.L.R. 242.

Sufficiency of plaintiff's allegations in defamation action as to defendant's malice, 76 A.L.R.2d 696.

Libel and slander: what constitutes actual malice, within federal constitutional rule requiring public officials and public figures to show actual malice, 20 A.L.R.3d 988.

Sufficiency of showing of malice or lack of reasonable care to support credit agency's liability for circulating inaccurate credit report, 40 A.L.R.3d 1049.

Who is "public official" for purposes of defamation action, 44 A.L.R.5th 193.

Criticism or disparagement of physician's character, competence, or conduct as defamation, 16 A.L.R.6th 1.

Defamation by television - actual malice, 42 A.L.R.6th 353.