Civil Model Jury Charge 3.11B PRIVATE DEFAMATION IN NJ

Civil Model Jury Charge3.11B PRIVATE DEFAMATION

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.1The Supreme Court inRocci

v. Ecole Secondaire, 165N.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; seePitts v.

Newark Bd. of Educ., 337N.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 ofSenna v. Floriment, 196N.J.469 (2008) and

W.J.A. v. D.A., 210N.J.229 (2012).

1. General Elements

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 statement2of fact concerning [plaintiff] and that [defendant] had

actual knowledge that the statement was false,oracted in reckless disregard of

1Seefootnote 1 of the Public Defamation instructions (Model Civil Charge 3.11A),supra.

2A defamatory statement may consist of libel or slander.Dairy Stores, Inc. v. Sentinel Publg

Co., 104N.J.125, 133, 516 A.2d 220 (1986)(citingProsser 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,oracted negligently in failing to ascertain the falsity of the

statement.

So, for [plaintiff] to prevail, he/she must prove by a preponderance of the

evidence3the 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 statements 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.]

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.]

3Except 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., 291N.J. Super.10 (App. Div.

1996),affd in part,revd in part, 152N.J.353 (1998).

4See Restatement (Second) of Torts, Section 580B;Bainhauer v. Manoukian, 215N.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 [defendants] 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,

[defendants] 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 of the

statement.5

3. Qualified Privilege

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.6The question of

whether a defamatory statement is conditionally privileged is for

the court.7If 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.8The

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.

5See Restatement (Second) of Torts, Section 580B, comments g and h.

6See, e.g.,Gallo v. Princeton Univ., 281N.J. Super.134, 143 (App. Div. 1995) (describing

circumstances giving rise to qualified privilege),certif. denied, 142N.J.453 (1995);

Restatement (Second) of Torts, Sections 594 to 598A (1977) (describing circumstances giving

rise to a qualified or conditional privilege).

7Hawkins v. Harris, 141N.J.207, 216 (1995) (whether a defendant is entitled to a privilege

is a question of law);Bainhauer v. Manoukian, supraat 40.

8Erickson v. Marsh & McLennan Co., supraat 566 (abuse of privilege is an issue normally

reserved for the jury);Bainhauer v. Manoukian, supraat 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,9or (b) protecting the

lawful interest of the person(s) to whom the allegedly defamatory

statement was communicated,10or (c) informing those persons sharing a

common interest of information which they are entitled to know by reason

of their common interest,11or (d) lawfully protecting the well-being of

defendants immediate family member(s) or an immediate family member

of the person to whom the statement was communicated.]12

9Restatement (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

employers lawful interest. Thus, an employee or supervisor is privileged in reporting to

management his/her reasonable belief concerning activity of an employee which is workrelated.

10For 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

employees qualifications for the job.See Restatement (Second) of Torts, Section 595, cmt. i.

11It 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.

12This 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.13If 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.16It must be as clear, direct and weighty and convincing as to

13Restatement (Second) of Torts, Section 599.

14See Kass v. Great Coastal Express, Inc.,supra.

15Erickson v. Marsh & McLennan, supraat 565-566: to defeat the qualified privilege,

plaintiff must show abuse by clear and convincing evidence.

16In re Boardwalk Regency Casino License Application, 180N.J. Super.324, 399 (App. Div.

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.17The clear and convincing standard of

proof requires more than a mere balancing of doubts or probabilities.18It 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.20I will now explain each of these ways

that the qualified privilege may be abused and thereby lost.21

1981),modified on other grounds, 90N.J.361 (1982).

17Aiello v. Knoll Golf Club, 64N.J. Super.156, 162 (App. Div. 1960);See Matter of Jobes,

108N.J.394, 407 (1987);State v. Hodge, 95N.J.369, 376 (1984).

18Aiello v. Knoll Golf Club, supraat 162.

19See alsoModel Civil Charge 1.19.

20Kass v. Great Coastal Express, Inc., supraat 356 (setting forth three-part test and clear and

convincing burden of proof);Williams v. Bell. Tel. Lab. Inc., 132N.J.109, 121 (1993) (setting

forth three-part test).

21The Appellate Division inKass 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 statements 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 statements 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 [defendants] motivation.

The privilege is lost if it is not made primarily for the purpose of furthering the

interest which is entitled to protection.24

22Kass v. Great Coastal Express, Inc.,supra.

23Id.at 357;Fees v. Trow, 105N.J.330, 341 (1987).

24Fees v. Trow,supraat 341.

CHARGE 3.11B Page 9 of 12

I have ruled that the interest which is entitled to protection here is

[choose appropriate interest]:

(a) protecting defendants 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 defendants 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.26However,

25Kass v. Great Coastal Express, Inc., supraat 22, 23;Restatement (Second) of Torts, Section

603.

26Fees v. Trow,supraat 341 (qualified privilege lost if defendant motivated by ill motive or

wrong motive);Coleman v. Newark Morning Ledger Co., 29N.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 defendants 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.

27See, e.g., Lutz v. Royal Ins. Co. of Am., 245N.J. Super.480, 499-501 (App. Div. 1991).

28See Gallo v. Princeton Univ., supraat 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, supraat 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.29Whether

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.30To find excessive publication, you must find by clear and convincing

29According toRestatement (Second) of Torts, Section 604, a plaintiff must establish two

elements to prove abuse of the privilege by excessive publication: (1) the defendantknewthat

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, andFeggans v.

Billington, 291N.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.

30Restatement (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

31See Gallo v. Princeton Univ., supraat 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, supraat 399-400 (it was not excessive for workers

to communicate to supervisor and to plaintiffs 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, supraat 399 (a communication is excessive where

defendants could have no reasonable belief that the publication was appropriate means of

communicating.);Gallo v. Princeton Univ., supraat 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....).