Seley-Radtke v. Hosmane

Watts, J. This case involves a matter of first impression requiring this Court to determine the standard of proof necessary to overcome a common law conditional privilege in a purely private defamation action. 1 Purely private defamation ⁴⁷² involves a defamation action that arises “when the reputation of a private individual is tarnished by a report of a private matter not of general or public concern[.]” Jacron Sales Co. v. Sindorf, 276 Md. 580, 588 , 350 A.2d 688, 693 (1976). Although this Court and the Court of Special Appeals have addressed issues concerning the standard of proof of fault in defamation cases, we have not been specifically asked to decide the standard of proof necessary to overcome a common law conditional privilege in a purely private defamation action. In addressing this matter of first impression, we are confronted with two alternative standards: proof by a preponderance of the evidence or proof by clear and convincing evidence. Although defamation jurisprudence traces its origins to a number of seminal First Amendment cases of the United States Supreme Court, the resolution of defamation claims brought by private individuals has largely been left to the province of State courts.

See Gertz v. Robert Welch, Inc., 418 U.S. 323, 347-48 , 94 S.Ct. 2997 , 41 L.Ed.2d 789 (1974). In cases of purely private defamation, this Court has held that proof of fault must meet the standard of the preponderance of the evidence, the quantum of proof ordinarily required in other types of actions for negligence. See Jacron, 276 Md. at 596-97 , 350 A.2d at 697-98 . Specifically, this Court has held that a “standard of negligence” as set forth in the Restatement (Second) of Torts § 580B (Am.

Law Inst. 1977), 2 is to be applied in cases of purely private defamation. Jacron, 276 Md. at 596 , 350 A.2d at 697 . Under this standard, the burden of proving falsity falls upon the plaintiff, rather than the burden of proving the truth of the alleged defamatory statement falling upon the defendant. Id. at 597 , 350 A.2d at 698 .

If the defendant asserts a common law conditional privilege, the ⁴⁷³ plaintiff bears the additional burden of overcoming that privilege to prevail on the defamation claim. It is well established that, in a defamation action, a defendant may assert a qualified or conditional privilege. See Gohari v. Darvish, 363 Md. 42, 55 , 767 A.2d 321, 327 (2001). A common law conditional privilege arises from the principle that a defendant may not be held liable for an otherwise provable defamatory statement if publication of the statement advances social interests that outweigh a plaintiffs reputational interest.

See Marchesi v. Franchino, 283 Md. 131, 135 , 387 A.2d 1129, 1131 (1978). A defendant may also assert what has been described in case law as a First Amendment conditional privilege. The Supreme Court has stated that statements pertaining to public officials and to public figures on matters of public concern merit special protection in our society; thus, such statements are subject to a conditional privilege—the First Amendment conditional privilege—that is overcome only by actual malice, ie., “knowledge that [the statement] was false or with reckless disregard of whether it was false or not.” New York Times Co. v. Sullivan, 376 U.S. 254, 279-80 , 84 S.Ct. 710 , 11 L.Ed.2d 686 (1964); Curtis Publ’g Co. v. Butts, 388 U.S. 130, 155 , 87 S.Ct. 1975 , 18 L.Ed.2d 1094 (1967); Gertz, 418 U.S. at 335 , 94 S.Ct. 2997 . 3 The existence of both common law and First Amendment conditional privilege is a question of law, and the defen ⁴⁷⁴ dant has the burden of proof with respect to establishing the privilege. See Piscatelli v. Van Smith, 424 Md. 294, 307 , 35 A.3d 1140, 1147 (2012).

If a conditional privilege is established, a plaintiff seeking to rebut the privilege must do so by demonstrating that the defendant made the alleged statement with malice, defined as “a person’s actual knowledge that his or her statement is false, coupled with his or her intent to deceive another by means of that statement.” Id. at 307-08 , 35 A.3d at 1148 (citations, brackets, and internal quotation marks omitted). The definition of malice—a person’s actual knowledge that his or her statement is false, coupled with his or her intent to deceive another by means of the statement—does not cover the standard of proof necessary to overcome the conditional privilege. Case law demonstrates that the standard of proof that is required to overcome a First Amendment conditional privilege is clear and convincing evidence of knowledge of a statement’s falsity or reckless disregard of whether the statement was false or not. See New York Times, 376 U.S. at 279-80 , 84 S.Ct. 710 .

In this case, however, it is the standard of proof that an individual must satisfy to overcome a common law conditional privilege, ie., to establish malice, in a purely private defamation action that is at issue. For the reasons stated below, we hold that, in a purely private defamation action, an individual asserting a defamation claim must overcome a common law conditional privilege by a preponderance of the evidence. BACKGROUND The facts giving rise to this purely private defamation action are as follows. Katherine Seley-Radtke (“Seley-Radtke”), Ph.

D., Petitioner, and Ramachandra S. Hosmane, Ph.D. (“Hos-mane”), Respondent, were colleagues in the Department of Chemistry at the University of Maryland, Baltimore County (“UMBC”). Hosmane was employed as a professor of chemistry at UMBC from 1982 until 2010, when he resigned following allegations of sexual assault of a graduate student. Based on allegations that Hosmane had sexually assaulted one of his ⁴⁷⁵ graduate students, Brahmi Shukla (“Shukla”), 4 UMBC officials conducted an administrative investigation and determined that Hosmane had violated UMBC’s sexual harassment policy.

In addition to allegations of sexual assault, UMBC investigated whether an e-mail sent to Shukla regarding the sexual assault, which Shukla characterized as threatening, had been authored by Hosmane. The e-mail was sent from a person named “Nimmy Watson,” a person unknown to Shukla; Shukla testified at trial that the contents of the Watson e-mail “scared” her. According to Hosmane, on December 10, 2009, UMBC informed him of the results of the administrative investigation and provided him with three options: (1) submit to a two-year suspension without pay; (2) avail himself of the administrative appeal process; or (3) retire without the results of the investigation being made public. Hosmane selected the third option and resigned and retired, effective January 1, 2010.

As a result, UMBC did not make public the findings of its investigation, nor was Hosmane sanctioned by UMBC. The Office of the State’s Attorney for Baltimore County, however, opened a criminal case against Hosmane stemming from the alleged sexual assault, and charged him with fourth-degree sex offense and second-degree assault in the District Court of Maryland sitting for Baltimore County, but subsequently nolle prossed the charges. Hosmane and Shukla entered into a settlement agreement (“the settlement agreement”) concerning the sexual assault matter, in which Hos-mane was to pay Shukla $10,000 and Shukla was to withdraw any civil and criminal claims against Hosmane related to the alleged sexual assault. On December 10, 2010, Hosmane filed in the Circuit Court for Baltimore County (“the circuit court”) a complaint against UMBC and other defendants related to his resignation from UMBC (“the UMBC ease”).

While the UMBC case was pending, Hosmane submitted a Maryland Public Information Act ⁴⁷⁶ (“public information”) request seeking documents from UMBC. In August 2011, Hosmane received a number of documents from UMBC as a result of the public information request. As a result, on July 6, 2012, Hosmane filed in the circuit court a two-count complaint against Seley-Radtke seeking damages for defamation and false light invasion of privacy. In the complaint, Hosmane alleged “some of the numerous instances in which” Seley-Radtke had defamed him: a.

In 2009, [Seley-Radtke] told the chemistry department chair, at least one co-worker, general counsel for UMBC, and others, that [Hosmane] had keys to many offices in the chemistry department, that he had stolen private documents regarding [Seley-Radtke] out of said offices, and that he had even sold some of the documents for money. None of these assertions are true. b. In February 2010, after [Hosmane]’s employment with UMBC had come to an end, [Seley-Radtke] wrote an email to the chemistry department chair and general counsel for UMBC in which she stated, among several defamatory statements, that [Hosmane] “is an unbalanced individual who has done some crazy and bizarre things, not to mention he’s prone to sudden outbursts, and given the shootings in Alabama, I worry for my safety and for that of anyone around me .... ” c. The same days she wrote the email referenced above, [Seley-Radtke] wrote another email to these same people and referred to [Hosmane] “stealing documents” and implied that [Hosmane] had falsely accused one of his students of trying to kill him.

In this second email, [Seley-Radtke] also called [Hosmane] a “nutcase,” and said that “it is not far-fetched that he could do something crazy at this point _” These assertions are all demonstrably untrue. d. [Seley-Radtke] has additionally claimed in communicating with others that [Hosmane] was banned from campus following the end of his employment at UMBC and that he was also not allowed to meet with his former students. This is not true, ⁴⁷⁷ e. [Seley-Radtke] has also claimed that [Hosmane], in speaking with his students, would make comments to them about [Seley-Radtke]’s body parts, particularly her breasts and buttocks. This is totally false. f. Moreover, [Seley-Radtke] has claimed that [Hosmane] tried to convince one of [Seley-Radtke]’s former post-doctorate students to file a formal complaint against [Seley-Radtke], even going so far as to offer the student a job if he would file the complaint.

Again, this is entirely untrue. (Ellipses in original). In her answer to the complaint, among.other things, Seley-Radtke raised the affirmative defense of privilege, contending that “[a]ny statements made by [her] were privileged and confidential communications.” On April 4, 2013, Hosmane filed an amended complaint naming UMBC and the State as additional defendants in the Seley-Radtke case. The circuit court subsequently consolidated the UMBC case and the Seley-Radtke case for the purpose of trial only.

On April 29, 2014, the circuit court granted the State’s and UMBC’s motion for summary judgment as to Hosmane’s claims for defamation and invasion of privacy in the Seley-Radtke case on the basis of sovereign immunity. The UMBC case and Hosmane’s case against Seley-Radtke proceeded to a jury trial. Prior to trial, Hosmane filed a motion in limine concerning several evidentiary matters; a few days later, Hosmane filed a supplemental motion in limine. In relevant part, Hosmane sought to exclude documents and testimony concerning the settlement agreement between himself and Shukla, and to redact from two exhibits the following language from Seley-Radtke’s e-mail: “Btw ...

I spoke to Det. John Taylor the other day and he mentioned that there are some potential new charges against [Hosmane], due to the harassing emails. Can’t that keep him off campus?” 5 (Ellipsis in original). During trial, the circuit court denied the motion in limine as to those two ⁴⁷⁸ matters.

As such, during trial, Shukla was permitted to testify about the settlement agreement, and Seley-Radtke’s un-re-dacted e-mails, containing the language that Hosmane sought to redact, were admitted into evidence. At trial, due to a scheduling issue, Shukla was permitted testify first. Shukla testified about the settlement agreement. Specifically, during Shukla’s direct examination, the following exchange occurred: [SELEY-RADTKE’S COUNSEL]: Now you also mentioned, a while back in your testimony, that there were criminal charges filed against [ ] Hosmane for the assault?

What happened with that criminal case? [HOSMANE’S COUNSEL]: Objection. THE COURT: Overruled. You may answer the question. [SHUKLA]: It was dismissed. [SELEY-RADTKE’S COUNSEL]: And why was it dismissed to your knowledge? [HOSMANE’S COUNSEL]: Objection. THE COURT: Overruled.

You may answer the question. [SHUKLA]: Because there was a settlement of about $10,000 made, and therefore it was dismissed. [HOSMANE’S COUNSEL]: Objection. Move to strike. THE COURT: Overruled. Before closing arguments, the circuit court reviewed proposed verdict sheets and jury instructions with the attorneys.

Hosmane requested that the circuit court give a jury instruction on the republication or repetition of defamatory statements. The circuit court declined to give the instruction. The circuit court, however, gave an instruction concerning opinions as defamation. During review of the proposed verdict sheets and jury instructions, Seley-Radtke contended that her statements regarding Hosmane were protected by a common interest conditional privilege. 6 The circuit court ruled, as a matter of law, ⁴⁷⁹ that Seley-Radtke was entitled to a conditional privilege for the allegedly defamatory statements; Hosmane did not argue otherwise.

As to the standard for overcoming the conditional privilege, Hosmane requested that the circuit court give Maryland Civil Pattern Jury Instruction 12:12, which provides that, “[i]n order to recover, the plaintiff must prove by a preponderance of the evidence that the defendant made the statement with actual knowledge that the statement was false, coupled with the intent to deceive another person by means of the statement.” MPJI-Cv 12:12 (4th ed., 2013 Supp.). On the other hand, Seley-Radtke argued that the pattern jury instruction should be “modified” to use language that the standard of proof is clear and convincing evidence, not a preponderance of the evidence. The circuit court agreed with Seley-Radtke and determined that the applicable standard of proof to overcome the conditional privilege was clear and convincing evidence. The circuit court stated: [T]he cases that have been cited so far, and I’ve reviewed them ...

I have yet to find in any of the cases that have been cited in this court this morning and handed to the court, plus other cases I’ve read where there’s a suggestion that the privilege is defeated by a preponderance of the evidence. I just haven’t seen it. ... So, ... the instruction is gonna be by clear and convincing evidence. The circuit court instructed the jury as follows: “In order to recover, the Plaintiff must prove by clear and convincing evidence that the Defendant made the statements with actual knowledge that the statement was false, coupled with the intent to deceive another person by means of the statement.” ⁴⁸⁰ On May 9, 2014, the jury found in favor of Seley-Radtke.

Hosmane noted a timely appeal to the Court of Special Appeals. On February 24, 2016, in a reported opinion, the Court of Special Appeals reversed the circuit court’s judgment and remanded the case for a new trial. See Hosmane v. Seley-Radtke, 227 Md.App. 11, 16 , 132 A.3d 348, 351 (2016). The Court of Special Appeals held that the circuit court “erred in instructing the jury that the [standard] of proof in overcoming the conditional privilege was clear and convincing evidence rather than by a preponderance of the evidence[.]” Id. at 16 , 132 A.3d at 351 .

The Court of Special Appeals explained: Recognizing that malice means different things in different context, the Court [of Appeals has] adopted a “uniform standard” or definition of malice applicable to determining abuse of a conditional privilege and required the same to establish punitive damages. This did not change or elevate the burden of proof in common law defamation required to overcome the conditional privilege. No where [sic] did the Court of Appeals say that plaintiffs in a common law defamation action, involving private individuals, not implicating the First Amendment, were entitled to higher protection and hence the higher burden of proof.... We hold that in common law tort defamation involving only private individuals, the burden of persuasion a plaintiff must satisfy to overcome the conditional privilege is preponderance of the evidence, while in First Amendment cases it is clear and convincing evidence.

Id. at 27-28 , 132 A.3d at 358 (citations omitted). Thus, the Court of Special Appeals remanded the case to the circuit court for a new trial. Id. at 16 , 132 A.3d at 351 . In its opinion, “[f]or the guidance of the [circuit] court on retrial,” the Court of Special Appeals addressed two evidentiary issues raised by Hosmane.

Id. at 16, 29 , 132 A.3d at 351, 359 . Specifically, the Court of Special Appeals addressed the circuit court’s decision not to redact part of an e-mail written by Seley-Radtke that was admitted into evidence that referenced “potential new charges” and “harassing emails,” and the circuit court’s decision to admit Shukla’s testimony concerning ⁴⁸¹ the settlement agreement. Id. at 29-31 , 132 A.3d at 359-60 . The Court of Special Appeals determined that the two sentences in Seley-Radtke’s e-mail and Shukla’s testimony about the settlement agreement were not relevant, were “highly prejudicial[,]” and could have led the jury to believe that Hosmane “was a sex abuser who paid money to resolve such a claim, that he was the subject of unrelated charges and was sending harassing emails.” Id. at 32 , 132 A.3d at 361 .

Seley-Radtke filed a petition for a writ of certiorari, which this Court granted on May 20, 2016. Seley-Radtke v. Hosmane, 448 Md. 29 , 136 A.3d 816 (2016). DISCUSSION I. Put simply, Seley-Radtke contends that clear and convincing evidence is the proper standard of proof to overcome a common law conditional privilege in a purely private defamation action. Specifically, Seley-Radtke argues that the malice required for overcoming a common law conditional privilege and the malice required for establishing punitive damages are, by definition, the same, and, therefore, the standard of proof necessary to prove both should be the same.

Seley-Radtke asserts that adopting the clear and convincing evidence standard as the standard of proof necessary to overcome a common law conditional privilege promotes the State’s policy of protecting free speech and furthers consistency in the law of defamation. Hosmane responds that the application of the preponderance of the evidence standard to overcome a common law conditional privilege is consistent with well-established Maryland case law. Hosmane contends that the statements in this case that are subject to a common law conditional privilege are already sufficiently protected by the definition of malice, which requires a plaintiff to prove “that the defendant made his or her statement with malice, defined as a person’s actual knowledge that his or her statement is false, coupled with his or her intent to deceive another by means of the statement.” (Cita ⁴⁸² tion, internal quotation marks, and emphasis omitted). Hos-mane argues that this definition of malice sufficiently protects privileged communications and that the standard of proof need not be clear and convincing evidence.

Hosmane asserts that applying the clear and convincing evidence standard of proof would significantly narrow the distinction between purely private defamation actions and those implicating the First Amendment, thereby providing fewer protections to private individuals who have been defamed. Additionally, Hosmane maintains that adopting the clear and convincing evidence standard would upend well-established case law and create confusion in Maryland defamation jurisprudence rather than provide clarity. This Court reviews a trial court’s giving of a jury instruction for abuse of discretion. See Keller v. Serio, 437 Md. 277, 283 , 85 A.3d 283, 286 (2014). “In determining abuse of discretion in this context, we look to the following factors: (1) whether the requested instruction was a correct statement of the law; (2) whether it was applicable under the facts of the case; and (3) whether it was fairly covered in the instructions actually given.” Id. at 283 , 85 A.3d at 286 (citation and internal quotation marks omitted).

Whether a jury instruction was a correct statement of the law is a question of law, which we review without deference. See, e.g., Griffin v. Lindsey, 444 Md. 278, 285 , 119 A.3d 753, 757 (2015) (“We review questions of law without deference.” (Citation omitted)). As this Court has observed, though, even in areas where a trial court has discretion, “no discretion is afforded to trial [courtjs to act upon an erroneous conclusion of law.” John Hopkins Hosp. v. Pepper, 346 Md. 679, 700 , 697 A.2d 1358, 1368 (1997). Accordingly, although we determine whether a trial court’s decision as to whether to give a particular jury instruction was an abuse of discretion, we review without deference the issue of whether the jury instruction was a correct statement of the law. “A defamatory statement is one which tends to expose a person to public scorn, hatred, contempt[,] or ridicule, ⁴⁸³ thereby discouraging others in the community from having a good opinion of, or associating with, that person.” Gohari, 363 Md. at 54 , 767 A.2d at 327 (citation and internal quotation marks omitted).

Whether a statement is defamatory is a question of law. Piscatelli, 424 Md. at 306 , 35 A.3d at 1147 , The United States Supreme Court (“the Supreme Court”) and Maryland appellate courts have addressed a myriad of issues related to proof of defamation, First Amendment conditional privilege, and common law conditional privileges. In New York Times Co. v. Sullivan, 376 U.S. 254, 256, 279-80 , 84 S.Ct. 710 , 11 L.Ed.2d 686 (1964), the Supreme Court considered “the extent to which the constitutional protections for speech and press limit a State’s power to award damages in a libel action brought by a public official, in that case, an elected Commissioner of the City of Montgomery, Alabama,] against critics of his official conduct[,]” and held: The constitutional guarantees [of the First and Fourteenth Amendments] require ... a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with ‘actual malice’—that is, with knowledge that it was false or with reckless disregard of whether it was false or not. In so holding, the Supreme Court noted that it “considered] th[e] case against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.” Id. at 270 , 84 S.Ct. 710 (citations omitted).

The Supreme Court explained that its holding was further supported by “[a]n oft-cited statement of a like rule,” namely, the adoption by a number of courts of “a privilege for criticism of official conduct[.]” Id. at 280-82 , 84 S.Ct. 710 (footnote omitted). According to the Supreme Court, “[s]uch a privilege for criticism of official conduct is appropriately analogous to the protection accorded a public official when he is sued for libel by a private citizen.” Id. at 282 , 84 S.Ct. 710 (footnote omitted). The Supreme Court ⁴⁸⁴ noted that decisions by other courts “all hold that all officials are protected unless actual malice can be proved” because, otherwise, “the threat of damage suits would [] inhibit the fearless, vigorous, and effective administration of policies of government[,]” Id. (citation and internal quotation marks omitted).

The Supreme Court determined that “[a]nalogous considerations support the privilege for the citizen-critic of government” because “[i]t is as much his duty to criticize as it is the official’s duty to administer.” Id. (citation omitted). Accordingly, the Supreme Court “conclude[d] that such a privilege is required by the First and Fourteenth Amendments.” Id. at 283 , 84 S.Ct. 710 . A few years later, in Curtis, 388 U.S. at 134 , 87 S.Ct. 1975 , the Supreme Court considered the impact of New York Times on “libel actions instituted by persons who are not public officials, but who are ‘public figures’ and involved in issues in which the public has a justified and important interest.” In other words, the Supreme Court was tasked with deciding whether New York Times applied only in actions brought by public officials or whether the case had a broader application and could apply to public figures who were not public officials, such as a university athletic director and football coach or a private citizen who was a person “of some political prominence[,]” who were involved in matters of public interest.

See Curtis, 388 U.S. at 134, 135-36, 140 , 87 S.Ct. 1975 . Unsurprisingly, the publishers argued that New York Times should be extended to public figures, whereas the public figures urged otherwise. See Curtis, 388 U.S. at 146 , 87 S.Ct. 1975 . The Supreme Court recognized the competing interests and stated “that an accommodation between them is necessary not only in these cases, but in all libel actions arising from a publication concerning public issues.” Id. at 147 , 87 S.Ct. 1975 .

The Supreme Court analyzed the distinctions between public officials and public figures and ultimately held: These similarities and differences between libel actions involving persons who are public officials and libel actions involving those circumstanced as [public figures], viewed in light of the principles of liability which are of general ⁴⁸⁵ applicability in our society, lead us to the conclusion that libel actions of the present kind [involving public figures] cannot be left entirely to state libel laws, unlimited by any overriding constitutional safeguard, but that the rigorous federal requirements of New York Times are not the only appropriate accommodation of the conflicting interests at stake. We consider and would hold that a ‘public figure’ who is not a public official may also recover damages for a defamatory falsehood whose substance makes substantial danger to reputation apparent, on a showing of highly unreasonable conduct constituting an extreme departure from the standards of investigation and reporting ordinarily adhered to by responsible publishers. Curtis, 388 U.S. at 155 , 87 S.Ct. 1975 (citation omitted). A few years later, in Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 30 , 91 S.Ct. 1811 , 29 L.Ed.2d 296 (1971) (plurality opinion), abrogated by Gertz, 418 U.S. 323 , 94 S.Ct. 2997 , the Supreme Court yet again considered the reach of New York Times.

The plurality set forth the framework and circumstances of the case as follows: New York Times held that in a civil libel action by a public official against a newspaper those [constitutional] guarantees [of freedom of speech and of the press] required clear and convincing proof that a defamatory falsehood alleged as libel was uttered with knowledge that it was false or with reckless disregard of whether it was false or not. The same requirement was later held to apply to public figures who sued in libel on the basis of alleged defamatory falsehoods. The several cases considered since New York Times involved actions of public officials or public figures, usually, but not always, against newspapers or magazines. Common to all the cases was a defamatory falsehood in the report of an event of public or general interest.

The instant case presents the question whether the New York Times’fs] knowing-or-reckless-falsity standard applies in a state civil libel action brought not by a public official or a public figure but by a private individual for a defamatory falsehood uttered in a news broadcast by a radio station about the ⁴⁸⁶ individual’s involvement in an event of public or general interest. Rosenbloom, 403 U.S. at 30-32 , 91 S.Ct. 1811 (plurality opinion) (citations, footnotes, and internal quotation marks omitted). As to that issue, the Supreme Court held that the New York Times definition of malice applied, thus further extending the applicability of New York Times. See Rosenbloom, 403 U.S. at 32 , 91 S.Ct. 1811 (plurality opinion).

Specifically, the Supreme Court held: [A] libel action ... by a private individual against a licensed radio station for a defamatory falsehood in a newscast relating to his involvement in an event of public or general concern may be sustained only upon clear and convincing proof that the defamatory falsehood was published with knowledge that it was false or with reckless disregard of whether it was false or not. Id. at 52 , 91 S.Ct. 1811 (footnote omitted). In 1974, in the seminal case of Gertz, 418 U.S. at 346-47 , 94 S.Ct. 2997 , the Supreme Court abrogated Rosenbloom and held that, “so long as they do not impose liability without fault, the States may define for themselves the appropriate standard of liability for a publisher or broadcaster of defamatory falsehood injurious to a private individual.” (Footnote omitted). In other words, the Supreme Court rejected its holding in Rosenbloom that the New York Times malice definition extended automatically to private individuals who had been defamed where the statement was related to a matter of public or general concern.

See Gertz, 418 U.S. at 346 , 94 S.Ct. 2997 . According to the Supreme Court, in Gertz, its holding “provide[d] a more equitable boundary between the competing concerns involved[,]” recognizing “the strength of the legitimate [S]tate interest in compensating private individuals for wrongful injury to reputation, yet shielding] the press and broadcast media from the rigors of strict liability for defamation.” Id. at 347-48 , 94 S.Ct. 2997 . Indeed, as the Supreme Court recognized, its “accommodation of the competing values at stake in defamation suits by private individuals allows the ⁴⁸⁷ States to impose liability on the publisher or broadcaster of defamatory falsehood on a less demanding showing than that required by New York Times.” Gertz, 418 U.S. at 348 , 94 S.Ct. 2997 . Underpinning its holding was the Supreme Court’s acknowledgment that private individuals are distinguishable from public officials and public figures for purposes of defamation actions.

See id. at 344 , 94 S.Ct. 2997 . Specifically, the Supreme Court observed that “[pjublic officials and public figures usually enjoy significantly greater access to the channels of effective communication and hence have a more realistic opportunity to counteract false statements than private individuals normally enjoy.” Id. (footnote omitted). As such, private individuals are “more vulnerable to injury, and the [S]tate interest in protecting them is correspondingly greater.” Id.

Moreover, the Supreme Court observed that public officials, unlike private individuals, have chosen to place themselves in the public realm. See id. at 344 , 94 S.Ct. 2997 . Individuals who run for office “must accept certain necessary consequences of [ ] involvement in public affairs[,]” such as “closer public scrutiny” of the public official’s discharge of his or her official duties and the public official’s fitness for office. Id. at 344-45 , 94 S.Ct. 2997 .

The Supreme Court stated that public figures stand in a similar position to public officials, usually having assumed prominent roles in society by “thrust[ing] themselves to the forefront of particular public eontroversies[,]” thus “invit[ing] attention and comment.” Id. at 345 , 94 S.Ct. 2997 . According to the Supreme Court, as a consequence of their positions as public officials and public figures, “the communications media are entitled to act on the assumption that public officials and public figures have voluntarily exposed themselves to increased risk of injury from defamatory falsehood concerning them. No such assumption is justified with respect to a private individual.” Id. Indeed, a private individual “has relinquished no part of his interest in the protection of his own good name, and consequently he has a more compelling call on the courts for redress of injury inflicted by defamatory falsehood.” Id. ⁴⁸⁸ Thus, according to the Supreme Court “private individuals are not only more vulnerable to injury than public officials and public figures; they are also more deserving of recovery.” Id.

Given the distinction between public officials and public figures on the one hand and private individuals on the other hand, the Supreme Court concluded that the States should control legal remedies for private individuals who are defamed. See id. at 345-46 , 94 S.Ct. 2997 . Indeed, in the Supreme Court’s view, “[t]he extension of the New York Times test proposed by the Rosenbloom plurality would abridge this legitimate [S]tate interest to a degree that [it] f[ou]nd unacceptable” and would, instead, bog the courts down with trying to determine “which publications address issues of ‘general or public interest’ and which do not[.]” Gertz, 418 U.S. at 346 , 94 S.Ct. 2997 . According to the Supreme Court, the “public or general interest” test set forth in Rosenbloom for determining whether the New York Times malice definition applied failed to serve the competing interests presented when a private individual is defamed.

Gertz, 418 U.S. at 346 , 94 S.Ct. 2997 . Following Gertz, in a series of cases, “this Court substantially changed the Maryland common law regarding defamation actions even in areas where the changes were not mandated by the First Amendment and Article 40 of the Maryland Declaration of Rights.” Telnikoff v. Matusevitch, 347 Md. 561, 593 , 702 A.2d 230, 246 (1997) (citations and footnote omitted). In Jacron, 276 Md. at 581-82 , 350 A.2d at 689 , we considered “the extent to which the First and Fourteenth Amendments to the Federal Constitution are applicable to actions for defamation by private individuals against defendants who are not publishers or broadcasters[,]” and, alternatively, whether, as a matter of Maryland law, “the law of defamation should be changed” in light of Gertz. We held that the principles announced in Gertz apply to defamation cases involving non-media defendants—ie., defendants who are not publishers and broadcasters—and that the standard of proof of fault “in cases of purely private defamation must meet the standard of the preponderance of the evidence.” See Jacron, 276 Md. at 594, 597 , 350 A.2d at 696, 698 .

In Jacron, id. at 582 , 350 A.2d at 689 , ⁴⁸⁹ an employee brought an action for slander against his former employer; in other words, the plaintiff was a private individual and the defendant was a private entity, not a publisher or broadcaster. The trial court ultimately directed a verdict for the former employer, ruling that the former employer was protected by a common law conditional privilege that had not been overcome because the employee had failed to show actual malice. See id. at 583-84 , 350 A.2d at 690 . The Court of Special Appeals reversed, holding that the employee “had presented sufficient evidence of malice to warrant submission of the question of abuse of the common law conditional privilege to the jury[.]” Id. at 584 , 350 A.2d at 690 .

The Court of Special Appeals also concluded that, because the defamatory statements were “purely private” in nature, the “case was beyond the reach of Gertz[,]” and that Gertz applied only where a private person was defamed in connection with a matter of public or general interest. Jacron, 276 Md. at 584, 588 , 350 A.2d at 690, 693 . This Court concluded that the case involved “defamation of a private individual as to a purely private matter[.]” Id. at 584 , 350 A.2d at 690-91 . However, this Court disagreed with the Court of Special Appeals that Gertz did not apply to purely private defamation actions.

See Jacron, 276 Md. at 588 , 350 A.2d at 693 . We recognized that “[t]he very essence of the Gertz decision ... was the shift in focus from the protection of free expression, which undergirded New York Times and its progeny ... to the [S]tate interest in protecting private persons who have been defamed.” Jacron, 276 Md. at 589 , 350 A.2d at 693 . We determined that Gertz applies to “actions brought by private persons regardless of whether the subject matter of the defamation is one of public or general interest.” Jacron, 276 Md. at 590 , 350 A.2d at 694 . This Court next concluded that Gertz itself extended to media defendants only, i.e., publishers and broadcasters, and did not extend to non-media defendants, such as the former employer, a private entity.

See Jacron, 276 Md. at 590 , 350 A.2d at 694 . Nonetheless, after reviewing as analogous the application of New York Times in both media and non-media ⁴⁹⁰ cases, this Court held “as a matter of [S]tate law that the Gertz holding should apply to media and non-media defendants alike, and to both libel and slander.” Jacron, 276 Md. at 592 , 350 A.2d at 695 . We explained that our holding was driven by “the compelling need for consistency and simplicity in the law of defamation.” Id. at 593 , 350 A.2d at 696 . Thus, we held that the principles articulated in Gertz apply broadly in defamation actions, to both media and non-media defendants in actions for libel and slander.

See Jacron, 276 Md. at 594 , 350 A.2d at 696 . Notably, in Jacron, id. at 596 , 350 A.2d at 697 , as to cases of purely private defamation, we adopted the Restatement (Second) of Torts § 580B (Am. Law Inst. 1977), and specifically held that a standard of negligence must be applied in cases of purely private defamation. The Restatement (Second) of Torts § 580B (Am.

Law Inst. 1977) provides: 580B. DEFAMATION OF PRIVATE PERSON. ONE WHO PUBLISHES A FALSE AND DEFAMATORY COMMUNICATION CONCERNING A PRIVATE PERSON, OR CONCERNING A PUBLIC OFFICIAL OR PUBLIC FIGURE IN RELATION TO A PURELY PRIVATE MATTER NOT AFFECTING HIS CONDUCT, FITNESS OR ROLE IN HIS PUBLIC CAPACITY, IS SUBJECT TO LIABILITY, IF, BUT ONLY IF, HE (a) KNOWS THAT THE STATEMENT IS FALSE AND THAT IT DEFAMES THE OTHER, (b) ACTS IN RECKLESS DISREGARD OF THESE MATTERS, OR (c) ACTS NEGLIGENTLY IN FAILING TO ASCERTAIN THEM. Jacron, 276 Md. at 596-97 , 350 A.2d at 697-98 .

We also clarified that the plaintiff bears the burden of proving the falsity of an allegedly defamatory statement. See id. at 597 , 350 A.2d at 698 . In other words, the defendant was no longer required to establish the truth of the statement as an affirmative defense, but rather the plaintiff was required to establish the falsity of the statement. See id. at 597 , 350 A.2d at 698 .

In ⁴⁹¹ establishing fault, this Court expressly determined that, in proving a defamation claim, a plaintiff must meet the preponderance of the evidence standard, rather than the clear and convincing evidence standard. See id. at 597 , 350 A.2d at 698 . We specifically explained that we addressed the standard of proof issue “to dispel any possible notion that the plaintiff must prove negligence by ‘clear and convincing’ evidence.” Id. at 597 , 350 A.2d at 698 . As to common law conditional privileges, we noted that, in Stevenson v. Balt.

Baseball Club, Inc., 250 Md. 482, 486-87 , 243 A.2d 533, 536 (1968) (which was later overruled in Marchesi, 283 Md. 131 , 387 A.2d 1129 ), we explained that we had adopted the following definition of malice: The privilege may be lost, however, if the plaintiff in a defamation case can show malice, which in this context means not hatred or spite but rather a reckless disregard of truth, the use of unnecessarily abusive language, or other circumstances which would support a conclusion that the defendant acted in an ill-tempered manner or was motivated by ill-will. Jacron, 276 Md. at 599-600 , 350 A.2d at 699 . In Jacron, id. at 600 , 350 A.2d at 699-700 , we observed that Maryland law did not recognize negligence as a legitimate ground upon which to defeat a common law conditional privilege, and, thus, we retained the Stevenson definition of malice, ie., “the reckless disregard standard[,]” as applied to common law conditional privileges, explaining: We repeated the Stevenson definition [in another case], and thus the reckless disregard standard now appears to be firmly established in Maryland as a test, albeit not the exclusive test, for abuse of a conditional privilege. This being a higher standard than negligence, we retain the common law conditional privilege in Maryland which, in a given case, may suffice to avoid liability even though the Gertz standard regarding falsity and defamation is met by the plaintiff.

It should be noted, however, that in a case where a common law conditional privilege is found to exist, the negligence standard of Gertz is logically subsumed in ⁴⁹² the higher standard for proving malice, reckless disregard as to truth or falsity, and therefore becomes irrelevant to the trial of the case. Were the plaintiff who is confronted with a conditional privilege incapable of proving the malice necessary to overcome that hurdle, it would be of no consequence that he might have met the lesser standard of negligence. (Footnote omitted). Thus, this Court held: Unless a conditional privilege is found to have existed, the plaintiff shall be required at the new trial of this case to establish the liability of the defendant through proof of negligence by the preponderance of the evidence, and may recover compensation for actual injury, ... but neither presumed nor punitive damages, unless he establishes liability under the more demanding New York Times [malice definition] of knowing falsity or reckless disregard for the truth.

Should the court determine that a common law conditional privilege existed, the question of its forfeiture vel non shall be governed by the views expressed herein. Id. at 601, 350 A.2d at 700 . As to privileges in defamation cases, in Smith v. Danielczyk, 400 Md. 98, 117 , 928 A.2d 795, 806 (2007), we explained that “[a]n absolute privilege is distinguished from a qualified privilege in that the former provides immunity regardless of the purpose or motive of the defendant, or the reasonableness of his conduct, while the latter is conditioned upon the absence of malice and is forfeited if it is abused.” (Citation and internal quotation marks omitted). By contrast, “[t]he common law conditional privileges rest upon the notion that a defendant may escape liability for an otherwise actionable defamatory statement, if publication of the utterance advances social policies of greater importance than the vindication of a plaintiffs reputational interest.” Marchesi, 283 Md. at 135 , 387 A.2d at 1131 (citations omitted).

This Court has identified four common law conditional privileges: (1) The public interest privilege, to publish materials to public officials on matters within their public responsibility; ⁴⁹³ (2) the privilege to publish to someone who shares a common interest, or, relatedly, to publish in defense of oneself or in the interest of others; (3) the fair comment privilege; and (4) the privilege to make a fair and accurate report of public proceedings. Gohari, 363 Md. at 57 , 767 A.2d at 329 . As to application of the common interest conditional privilege—the privilege asserted by Seley-Radtke in this case—this Court has explained that “a common interest may include interests in property, business and professional dealings, and can inhere in business dealings between the publisher and the recipient.” Id. at 58 , 767 A.2d at 329 (citations and internal quotation marks omitted). And, we have provided the following guidance as to application of the common interest conditional privilege: Common interests are usually found among members of identifiable groups in which members share similar goals or values or cooperate in a single endeavor....

The idea is to promote free exchange of relevant information among those engaged in a common enterprise or activity and to permit them to make appropriate internal communications and share consultations without fear of suit.... The privilege does not arise in the first place unless the communication relates in some degree to the common interest, and once the privilege arises it is lost if it is abused by malice or excessive publication. Id. at 58 , 767 A.2d at 329 (citation omitted) (ellipses in original). If a trial court determines that a common law conditional privilege exists, a plaintiff seeking to defeat the privilege must prove that the defendant abused the privilege by making the statements “with malice, defined as a person’s actual knowledge that his or her statement is false, coupled with his or her intent to deceive another by means of that statement.” Piscatelli, 424 Md. at 307-08 , 35 A.3d at 1147-48 (citation, brackets, and internal quotation marks omitted).

In assessing whether a party’s statements were made with malice, a trial court considers all relevant factors, “including the defendant’s reasonable ⁴⁹⁴ belief in the truth of his statements, the excessive nature of the language used, whether the disclosures were unsolicited, and whether the communication was made in a proper manner and only to proper parties.” Id. at 308 , 35 A.3d at 1148 (citation and internal quotation marks omitted). The definition of “malice” as applied to defamation cases has evolved since Gertz. As discussed above, in Stevenson, 250 Md. at 486-87 , 243 A.2d at 536 , this Court stated that the malice required to overcome a claim of common law conditional privilege is “not hatred or spite but rather a reckless disregard of truth, the use of unnecessarily abusive language, or other circumstances which would support a conclusion that the defendant acted in an ill-tempered manner or was motivated by ill-will.” This definition of malice differed, however, from the New York Times, 376 U.S. at 280 , 84 S.Ct. 710 , definition of malice, which applied when a plaintiff sought presumed or punitive damages: a statement made “with knowledge that it was false or with reckless disregard of whether it was false or not.” Over time, these differing, incompatible definitions of malice resulted in confusion for juries, leading this Court to adopt a single definition for malice in defamation cases—the New York Times definition of malice. See Marchesi, 283 Md. at 138 , 387 A.2d at 1133 .

In Marchesi, id. at 138-39 , 387 A.2d at 1133 , this Court explained its rationale for abandoning the definition articulated in Stevenson, 250 Md. 482 , 243 A.2d 533 , as follows: If, as we suspect is frequently the case, juries encounter difficulty in applying even a single standard of malice, where only one is applicable, then they cannot help but find the task of coping with two disparate forms vastly more complicated. The solution to this dilemma, we think, lies in the adoption of the New York Times standard of malice to defeat the conditional privilege defense in eases of private defamation, thus resulting in a uniform definition of malice to be applied for all purposes where defamatory conduct is charged. As such, this Court adopted the New York Times standard, requiring evidence of the defendant’s “knowledge of falsity or ⁴⁹⁵ reckless disregard for truth” for overcoming a conditional privilege “in cases of private defamation.” Marchesi, 283 Md. at 139 , 387 A.2d at 1133 . In Jacron, 276 Md. at 600 , 350 A.2d at 699-700 , this Court explained “that in a case where a common law conditional privilege is found to exist, the negligence standard of Gertz is logically subsumed in the higher standard for proving malice, reckless disregard as to truth or falsity,[ 7 ] and therefore becomes irrelevant to the trial of the case.” Indeed, as we explained, if a plaintiff “confronted with a conditional privilege