With Malice Not Required

The Georgia Supreme Court vacated and remanded a Court of Appeals decision dismissing a defamation action brought against an attorney

Dr. Armin Oskouei, the owner of two medical facilities, filed a lawsuit alleging that Zachary Matthews, a defense attorney who represented clients in cases that tangentially involved the medical facilities, made defamatory statements suggesting that Oskouei performed “illegal” surgeries, among other things. Matthews moved to strike the defamation lawsuit pursuant to Georgia’s anti-Strategic Lawsuits Against Public Participation (“anti-SLAPP”) statute, OCGA § 9-11-11.1, which allows a trial court to strike certain claims based on a person’s right of petition or free speech when there is no “probability that the nonmoving party will prevail on the claim.” OCGA § 9-11-11.1 (b) (1). The trial court denied the motion to strike, but the Court of Appeals reversed that ruling in Matthews v. Oskouei, 369 Ga. App. 568 (894 SE2d 141) (2023). The Court of Appeals held that Oskouei could not establish a probability of prevailing on his defamation claims because he had not overcome Matthews’s defense of conditional privilege. Id. at 573-575. In this respect, the court determined that Oskouei had not established that Matthews acted with “actual malice,” such that “Matthews knew that his statements were false or that he made them with a reckless disregard for the truth.” Id. at 575.

We granted Oskouei’s petition for certiorari to address an issue of first impression in this Court: whether a plaintiff is required to show that the defendant acted with “actual malice” (i.e., knowledge of falsity or reckless disregard for the truth) to defeat his defense of conditional privilege. We conclude that the “actual malice” standard does not apply in such cases. As we explain below, under OCGA § 51-5-9, to overcome a conditional privilege, a plaintiff must show that the defendant used the privilege “merely as a cloak for venting private malice and not bona fide in promotion of the object for which the privilege is granted.” And in light of the legal and historical 2 context of the text of OCGA § 51-5-9—which was originally codified in 1860—we conclude that a plaintiff meets his burden under that statute by establishing that the defendant’s claim of privilege is a sham and that he made the allegedly defamatory statement with ill will toward the plaintiff or with an intent to injure him.

That is not the “actual malice” standard that the Court of Appeals applied in this case. It instead applied the “actual malice” standard the United States Supreme Court first announced in New York Times Co. v. Sullivan, 376 U.S. 254 (84 SCt 710, 11 LE2d 686) (1964)—a constitutional standard that applies only in certain defamation cases. In particular, the “actual malice” standard does not pertain to defamation cases brought by private-figure plaintiffs relating to statements that do not involve matters of public concern. Because the Court of Appeals incorrectly imported the “actual malice” standard into OCGA § 51-5-9 in this case, we vacate the Court of Appeals’s opinion and remand the case to that court for further proceedings consistent with this opinion. We also overrule several other Court of Appeals cases holding that a plaintiff must establish “actual malice” under New York Times to overcome a conditional-privilege defense under OCGA § 51-5-9.

Justice McMillan concurred

Although I concur fully in the Court’s opinion, I write separately to clarify why I believe we must vacate the Court of Appeals’s judgment in this case and remand with direction for the trial court to evaluate Matthews’s anti-SLAPP motion under the correct standards, including on the threshold question of whether Georgia defamation law or the federal New York Times standard applies.

...it remains an open question of whether the alleged defamatory statements were of public concern, such that the New York Times standard could apply. Because no court has yet decided this key threshold issue, the appropriate disposition is to vacate the judgment of the Court of Appeals with direction to remand the case to the trial court for consideration of whether Oskouei has established a reasonable probability of prevailing on his claims, under the standards enunciated by the Court, including the threshold question of whether state defamation law or the New York Times standard applies. See, e.g., Zeh, 312 Ga. at 676 (5) n.26 (explaining that, while “all public officials may be public figures, even though all public figures are not public officials[,]” that question was not posed on certiorari and leaving it “to the trial court to decide in the first instance on remand whether the ACLU claims that Zeh is a ‘public figure plaintiff’ as that term is used in OCGA § 9-11-11.1 (b) (2)” (punctuation omitted))

(Mike Frisch)