2020 Georgia Code
Title 51 - Torts
Chapter 5 - Libel and Slander
§ 51-5-9. Right of Action for Malicious Use of Privilege

In every case of privileged communications, if the privilege is used merely as a cloak for venting private malice and not bona fide in promotion of the object for which the privilege is granted, the party defamed shall have a right of action.

(Orig. Code 1863, § 2923; Code 1868, § 2930; Code 1873, § 2981; Code 1882, § 2981; Civil Code 1895, § 3841; Civil Code 1910, § 4437; Code 1933, § 105-710.)

- For article, "Defamation and Invasion of Privacy," see 27 Ga. St. B. J. 18 (1990).

Former Code 1933, §§ 105-704, 105-709, and 105-710 (see now O.C.G.A. §§ 51-5-7 and51-5-9) should be construed together. Lamb v. Fedderwitz, 71 Ga. App. 249, 30 S.E.2d 436 (1944).

Former Code 1933, §§ 105-710 and 105-711 (see now O.C.G.A. §§ 51-5-8 and51-5-9) must be construed together. Finish Allatoona's Interstate Right, Inc. v. Burruss, 131 Ga. App. 572, 206 S.E.2d 679 (1974).

- Former Code 1882, § 2981 (see now O.C.G.A. § 51-5-9) includes every case of conditional privilege under former Code 1882, § 2980 (see now O.C.G.A. § 51-5-7) and had no application to absolute privileges, such as former Civil Code 1895, § 3842 (see now O.C.G.A. § 51-5-8). Wilson v. Sullivan, 81 Ga. 238, 7 S.E. 274 (1888).

- To make the defense of privilege complete in an action of slander, 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 must appear. The absence of any one or more of these conditions will revoke the privilege. Van Geter v. Housing Auth., 167 Ga. App. 432, 306 S.E.2d 707 (1983), aff'd, 252 Ga. 196, 312 S.E.2d 309 (1984).

Privilege accorded to communications mentioned in this section is but conditional privilege, and in every such case, if the privilege is used merely as a cloak for venting private malice, and not bona fide in promotion of the object for which the privilege is granted, the party defamed has a right to action. Veazy v. Blair, 86 Ga. App. 721, 72 S.E.2d 481 (1952); Morton v. Gardner, 155 Ga. App. 600, 271 S.E.2d 733 (1980).

Charges against members made by a church legitimately undertaking an investigation of misconduct were privileged, but there was no privilege for charges actually known to be false and made with the purpose of injuring another. First United Church v. Udofia, 223 Ga. App. 849, 479 S.E.2d 146 (1996).

Defense of "privilege" admits publication of allegedly defamatory matter but asserts it was done on privileged occasion and bona fide in promotion of the object for which the privilege was granted. Morton v. Gardner, 155 Ga. App. 600, 271 S.E.2d 733 (1980).

In order to claim limited privilege under former Code 1933, §§ 105-704 and 105-709 (see now O.C.G.A. § 51-5-7), communications must be made only to proper person, and privilege may not be used as a cloak for venting a private malice. Melton v. Bow, 241 Ga. 629, 247 S.E.2d 100, cert. denied, 439 U.S. 985, 99 S. Ct. 576, 58 L. Ed. 2d 656 (1978).

Good faith and good intention are necessary and essential ingredients of privileged communications. Lamb v. Fedderwitz, 71 Ga. App. 249, 30 S.E.2d 436 (1944).

Proof that communication as made was privileged will defeat recovery unless actual malice on the part of the defendant exists. Van Gundy v. Wilson, 84 Ga. App. 429, 66 S.E.2d 93 (1951); Morton v. Gardner, 155 Ga. App. 600, 271 S.E.2d 733 (1980).

If communication is generally termed absolutely privileged under the law, there can be no recovery. Jordan v. Hancock, 91 Ga. App. 467, 86 S.E.2d 11 (1955).

If the privilege extended to the communication is absolute, it is immaterial whether there may have been a malicious publication, but when the privilege is a qualified one the privilege must be exercised in good faith and without 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).

- Under Georgia law, the constitutional "actual malice" standard for public figure defamation cases in New York Times Co. v. Sullivan, 376 U.S. 254, 84 S. Ct. 710, 11 L. Ed. 2d 686 (1964) applies to cases involving O.C.G.A. § 51-5-9, even in the context of private figure plaintiffs. Hammer v. Slater, 20 F.3d 1137 (11th Cir. 1994).

When the plaintiff alleges that communication was "malicious use" of privilege, express malice must be proven. Morton v. Gardner, 155 Ga. App. 600, 271 S.E.2d 733 (1980).

Proof that a defendant acted with actual malice in making a statement defeats the defense of privilege under O.C.G.A. § 51-5-9. To prove actual malice, a plaintiff must show that a defendant knew that the statements were false or published them with reckless disregard of whether they were false or not; conclusory allegations by the plaintiff of malice are insufficient, in the absence of substantiating facts or circumstances, to raise a material issue for trial. Cooper-Bridges v. Ingle, 268 Ga. App. 73, 601 S.E.2d 445 (2004).

- Malice towards psychology intern could not be drawn indirectly from the direct evidence of the supervisor's controversy with colleagues over supervision of the intern. Cohen v. Hartlage, 179 Ga. App. 847, 348 S.E.2d 331 (1986).

Real estate developer did not show defamation on the part of home buyers because the buyers in the buyers communications with others concerning drainage problems on the buyers property which the buyers purchased from the developer addressed factually true information, pursuant to O.C.G.A. § 51-5-6, and the buyers communications were privileged, pursuant to O.C.G.A. § 51-5-7, as there was no showing of malice pursuant to O.C.G.A. § 51-5-9. Chaney v. Harrison & Lynam, LLC, 308 Ga. App. 808, 708 S.E.2d 672 (2011).

- With regard to a controller's claims for defamation and tortious interference against an accounting/auditing firm that wrote a letter to the controller's employer that resulted in the controller's termination from employment, the trial court erred by dismissing the complaint after concluding that the alleged defamatory statements were inactionable privileged communications that had not been published since the controller sufficiently alleged malice, the communications between the accounting/auditing firm and the employer were conditionally privileged under O.C.G.A. § 51-5-7, and the controller sufficiently alleged publication of the statements. Saye v. Deloitte & Touche, LLP, 295 Ga. App. 128, 670 S.E.2d 818 (2008).

- Expelled respiratory therapy student failed to prove malice as required under O.C.G.A. § 51-5-9 after the student's mentor in an externship program denied signing a letter the student presented as evidence at the student's expulsion hearing that the student had permission to leave the student's shift for a job interview; a showing of malice was required because the mentor's statements in the expulsion hearing were conditionally privileged under O.C.G.A. § 51-5-7. Wertz v. Allen, 313 Ga. App. 202, 721 S.E.2d 122 (2011).

In a driver's defamation case against an attorney for parties injured in a collision with the driver, the trial court erred in denying the attorney's motion to dismiss the case under the anti-SLAPP statute, O.C.G.A. § 9-11-11.1, because the attorney's statements regarding the driver's excessive speed and use of Snapchat's Speed Filter on the defendant's phone at the time of the collision were conditionally privileged under O.C.G.A. § 51-5-7, and no malice was shown. Neff v. McGee, 346 Ga. App. 522, 816 S.E.2d 486 (2018).

If occasion of utterance renders it privileged, in which case burden is put upon the plaintiff to establish malice. Cochran v. Sears, Roebuck & Co., 72 Ga. App. 458, 34 S.E.2d 296 (1945); Edmonds v. Atlanta Newspapers, Inc., 92 Ga. App. 15, 87 S.E.2d 415 (1955).

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

While the burden is on the defendant to establish its defense that the communication was a privileged one, when it has made a 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).

After a newspaper presented uncontroverted evidence that its editor and publisher believed an article to be newsworthy and of interest to the public, and that neither the publisher nor the reporter harbored hatred or ill will toward the plaintiff, the burden shifted to the plaintiff to point to specific evidence of actual malice. Munoz v. American Lawyer Media, 236 Ga. App. 462, 512 S.E.2d 347 (1999).

When a city employee sued a city manager for defamation, due to statements made about the employee to a reporter, and the city manager asserted the defense of privilege, the employee did not defeat that defense, under O.C.G.A. § 51-5-9, by showing the city manager acted with actual malice because the city manager's evidence established a lack of malice, shifting the burden to the employee to show evidence of the city manager's malice; furthermore, the employee's nine "facts," from which the employee claimed malice could be inferred, did not rise above the level of conclusory allegations and speculation, and did not create a jury issue, so the city manager was entitled to summary judgment. Rabun v. McCoy, 273 Ga. App. 311, 615 S.E.2d 131 (2005), overruled on other grounds by West v. City of Albany, 2017 Ga. LEXIS 177 (Ga. 2017).

- The falsity of a communication, maligning the private character and mercantile standing of another is itself evidence of malice under this section. Johnson v. Bradstreet Co., 77 Ga. 172, 4 Am. St. R. 77 (1886).

- When the communication is made maliciously with conscious knowledge that the communication is false, there is such abuse of the privilege claimed as to deny to the defendants the right to claim its protection from liability. Jordan v. Hancock, 91 Ga. App. 467, 86 S.E.2d 11 (1955).

"Actual malice" as defined by New York Times Co. v. Sullivan, 376 U.S. 254, 84 S. Ct. 710, 11 L. Ed. 2d 686 (1964), is knowledge that the defamatory matter was false or it was published with reckless disregard of whether it was false or not. Morton v. Gardner, 155 Ga. App. 600, 271 S.E.2d 733 (1980).

Evidence not relevant to prove slanderous utterance may be relevant upon question of malice in that it is competent to show the state of mind of the parties at the approximate time of the remarks, and is of probative value. Van Gundy v. Wilson, 84 Ga. App. 429, 66 S.E.2d 93 (1951).

It is question for jury to determine whether comment was actuated with malice. McIntosh v. Williams, 160 Ga. 461, 128 S.E. 672 (1925).

Good faith and malice are both matters that can be inquired into, except in case of absolute privilege, and are questions of fact to be submitted to and determined by a jury. Lamb v. Fedderwitz, 71 Ga. App. 249, 30 S.E.2d 436 (1944).

If statements wholly unnecessary for the protection of the interest intended to be subserved should be included, this would be a circumstance to be considered by the jury in determining whether the communication was really made in good faith, or was made maliciously. Lamb v. Fedderwitz, 71 Ga. App. 249, 30 S.E.2d 436 (1944).

As to whether a communication which is qualifiedly privileged is used with a bona fide intent to protect the speaker or when the writer's own interest is concerned, or whether such communication is uttered maliciously, is a question of fact for the jury trying the case to determine. Lamb v. Fedderwitz, 71 Ga. App. 249, 30 S.E.2d 436 (1944).

Evidence created a question of fact with regard to defendant corporation's privilege and its "actual malice" in directing its attorney to forward to the plaintiff and the plaintiff's employer a letter seeking the return of any confidential commercial information which the plaintiff may have taken upon the plaintiff's departure from the corporation. Quikrete Cos. v. Schelble, 186 Ga. App. 330, 367 S.E.2d 114 (1988).

- When the plaintiff charged malice, affidavits from each of the individual defendants indicating that the defendants acted properly in the course of their duties and without malice toward the plaintiff eliminated any genuine issue of material fact and placed the burden on the plaintiff to come forward with a showing of malice; since the plaintiff failed to make such a showing, summary judgment against the plaintiff was proper. Meyer v. Ledford, 170 Ga. App. 245, 316 S.E.2d 804 (1984).

Defendant did not establish absence of actual malice as to a newspaper article concerning a prior lawsuit filed by the present defendant against the present plaintiff and containing allegedly defamatory statements contributable to the present defendant in order to prevail on a motion for summary judgment. Fiske v. Stockton, 171 Ga. App. 601, 320 S.E.2d 590 (1984).

In a libel action, when the challenged communication between the plaintiff's former employer and the plaintiff's prospective employer was accurate, and the former employer asserted that the employer bore no ill will toward the plaintiff, the trial court properly granted summary judgment to the defendant. Kenney v. Gilmore, 195 Ga. App. 407, 393 S.E.2d 472, cert. denied, 195 Ga. App. 407, 393 S.E.2d 472 (1990).

Cited in Sheftall v. Central of Ga. Ry., 123 Ga. 589, 51 S.E. 646 (1905); Lamb v. Fedderwitz, 72 Ga. App. 406, 33 S.E.2d 839 (1945); Dixie Broadcasting Corp. v. Rivers, 209 Ga. 98, 70 S.E.2d 734 (1952); Savannah News-Press, Inc. v. Hartridge, 110 Ga. App. 203, 138 S.E.2d 173 (1964); Curtis Publishing Co. v. Butts, 351 F.2d 702 (5th Cir. 1965); Sherwood v. Boshears, 157 Ga. App. 542, 278 S.E.2d 124 (1981); Jones v. J.C. Penney Co., 164 Ga. App. 432, 297 S.E.2d 339 (1982); Richardson v. King, 170 Ga. App. 169, 316 S.E.2d 582 (1984); Anderson v. Housing Auth., 171 Ga. App. 841, 321 S.E.2d 378 (1984); Clayton v. Macon Tel. Publishing Co., 173 Ga. App. 466, 326 S.E.2d 789 (1985); Williams v. Cook, 192 Ga. App. 811, 386 S.E.2d 665 (1989); Freeman v. Piedmont Hosp., 209 Ga. App. 845, 434 S.E.2d 764 (1993); AirTran Airlines v. Plain Dealer Publishing Co., 66 F. Supp. 2d 1355 (N.D. Ga. 1999).

RESEARCH REFERENCES

Am. Jur. 2d.

- 50 Am. Jur. 2d, Libel and Slander, § 263 et seq.

- 53 C.J.S., Libel and Slander, §§ 108 et seq., 245, 259, 266.