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Vol. 2008-5-a | May, 2008

Defamation; Libel v. Slander

{¶10} Defamation, which includes both libel and slander, is a false publication that causes injury to a person’s reputation, either exposing the person to public hatred, contempt, ridicule, shame or disgrace, or affecting the person adversely in his or her trade of business. Roe ex rel. Roe v. Heap, Franklin App. No. 03AP-586, 2004-Ohio-2504, at ¶18, citing Sweitzer v. Outlet Communications, Inc. (1999), 133 Ohio App.3d 102, 108. (Page 5) Slander refers to spoken defamatory words, while libel refers to written or printed defamatory words. Id., citing Mallory v. Ohio Univ. (Dec. 20, 2001), Franklin App. No. 01AP-278.

{¶16} Under Ohio law, truth is a complete defense to a claim for defamation. Ed Schory & Sons, Inc. v. Soc. Natl. Bank (1996), 75 Ohio St.3d 433, 445.

{¶17} In the context of a defamation claim, the defense of privilege applies to statements that are “made in good faith on any subject matter in which the person communicating has an interest, or in reference to which he has a right or duty, if made to a person having a corresponding interest or duty on a privileged occasion and in a manner and under circumstances fairly warranted by the occasion and duty, right or interest. The essential elements thereof are 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.” Hahn v. Kotten (1975), 43 Ohio St.2d 237, 244. Franklin v. Miami Univ., 2008-Ohio-2446. (Court of Claims of Ohio, Decided May 7, 2008.)

{¶ 32} Written defamation is referred to as libel. Strussion v. Akron Beacon Journal Publishing Co., 9th Dist. No. 20833, 2002-Ohio-3200, at ¶ 18. Libel is generally defined as “a false written publication, made with some degree of fault, reflecting injuriously on a person’s reputation, or exposing a person to public hatred, contempt, ridicule, shame or disgrace, or affecting a person adversely in his or her trade, business or profession.” A & B-Abell Elevator Co., Inc. v. Columbus/Central Ohio Bldg. & Constr. Trades Council (1995), 73 Ohio St.3d 1, 7, 651 N.E.2d 1283, 1995-Ohio-66.

{¶33} To prevail on a libel claim, a plaintiff must prove five elements: “(1) a false and defamatory statement; (2) about plaintiff; (3) published without privilege to a third party; (4) with fault of at least negligence on the part of the defendant; and (5) that was either defamatory per se or caused special harm to the (Page 16) plaintiff.” Gosden v. Louis (1996), 116 Ohio App.3d 195, 206, 687 N.E.2d 481. Jacobs v. Budak (2004), 156 Ohio App.3d 160, 805 N.E.2d 111

{¶ 34} “Libel per se means libel of itself, or upon the face of a publication, whereas libel per quod is libel by an interpretation, through an innuendo, between an innocent or harmless meaning and a libelous one.” Becker v. Toulmin (1956), 165 Ohio St. 549, 556, 138 N.E.2d 391. If a publication can by innuendo be construed to be either nonlibelous or libelous, the question may be submitted to a jury provided special damages have been pleaded and proved by the one claiming libel. There can be no maintenance of an action for libel per quod in the absence of proof of special damages. Id. White v. Lima Auto Mall, Inc., 2008-Ohio-2403 (CA 3 ALLEN, Decided May 19, 2008.)

AUTHOR / EDITOR: J. NORMAN STARK is an Attorney-at-Law, a Registered Architect, (AIA, NCARB) Registered Landscape Architect, Interior Designer, Planner and Senior Appraiser (ASA), admitted to practice law before the Bar of Ohio, the US District Courts, Ohio and Illinois (Central Dist.), the US Court of Appeals, and the United States Supreme Court. He is a Mediator, Arbitrator and Litigator with experience in Business, Construction Law, and Public Works, and with additional experience in Real Estate, Construction Attorney (Legal Project and Crisis Management), and as an Expert Witness (Forensic Architect). His office is in Cleveland, Ohio.