The background is complicated, but the short version is:
Our daughters' ex-stepfather who had adopted them when they were minors has photographed our granddaughter nude, on her back, with labia prominantly in the foreground when she was born...our daughters blew it off as a normal photo of a newborn when we told them we felt it was obscene.
Later, we discovered obscene images of little girls 5-10 yo in his browser cache and reported it to the FBI, who did nothing because he wasn't a big fish, but instructed us to say nothing in case he comes up in an investigation. Years went by and nothing happened.
When our granddaughter turned five, he suddenly wanted to spend time with her and paid to have her brought to him for a visit in which she spent the night at his home. At tis point we felt we had to inform our daughters about the child porn we found in his browser cache because we feared for our granddaughter.
When we did, our daughters reacted badly and defended him, cut us off from our granddaughter and continued to allow him unsupervised visits with her. We got into arguments with them over this on her mother's facebook page. Our youngest has taken screenshots and provided them to him to sue us for defamation per se.
Our attorney did nothing, in fact told us one thing and did another--which conveniently helped the plaintiff's case. This is a good-ole-boy type of area and we felt the attorney was leading us to slaughter. We confronted him and he withdrew. Since we don't know who to trust, we are now pro se co-defendants.
We feel that we have managed to make headway, and even seem to have him on the ropes, but can't find good case law to help since most pertains to media in one way or the other. We feel that privilage exists between us and our daughters due to the common interest in protecting our granddaughters; we feel that being first hand witnesses he can't prove his case; they have comitted several felonies gathering evidence for him.
We know there is a summary judgement in our favor in there somewhere but can't find a good example of case law to use ton properly write the motion. Are we screwed and just fooling ourselves?
Edited to add details:
The plaintiff began adoption proceedings of my daughters while I was stationed in Korea and he was married to my ex-wife. The "we" I refer to above is me and my ex-wife...we have been back together since just before my oldest granddaughter was born.
We found the child porn images in the web cache of his account on her computer.
My daughters have animosity toward me because they were told that I signed off on the adoption and abandoned them...I did not. It was done by a judge. And now they hold anger toward their mother for divorcing their step-father.
My oldest granddaughter is now 6 and shows signs of molestation.
We are first hand witnesses to the offenses he has committed. We can not believe that there is no legal provision to protect our right to defend our family without him being formally charged and/or prosecuted.
Any help is greatly appreciated.
This is not about criminal law, although crimes are involved.
I am looking for an answer concerning DEFAMATION PER SE between non-media plaintiff and non-media co-defendants.
We will wait a bit longer
Thank you for your question and I'm sorry it has taken a while to get a response to you.
I'll gladly provide you with some case law which you can use to help you. However, I want to start out with the proposition that I disagree with you that there is a Summary Judgment which you are going to win. There is no immunity or privilege for your communication to your daughter. Based on what you have told me, I think you are going to have to go to trial and you are going to have to prove the truth of the statements which you published on Facebook.
Let's start with some basics:
Under Ohio law, defamation "is defined generally 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. Becker v. Toulmin (1956),XXXXX 549, 553, 60 O.O. 502, 504, 138 N.E.2d 391, 395; Cleveland Leader Printing Co. v. Nethersole (1911),XXXXX 118, 95 N.E. 735, paragraph two of the syllabus. See Matalka v. Lagemann (1985), 21 Ohio App.3d 134, 136, 21 OBR 143, 145, 486 N.E.2d 1220, 1222 (defamation); Hersch v. E.W. Scripps Co. (1981), 3 Ohio App.3d 367, 374, 3 OBR 430, 438, 445 N.E.2d 670, 678; Thomas H. Maloney & Sons, Inc. v. E.W. Scripps Co. (1974), 43 Ohio App.2d 105,107, 72 O.O.2d 313, 315, 334 N.E.2d 494, 497.
The term "privilege" commonly encompasses affirmative defenses by which a defendant "acknowledges at least part of the conduct complained of but asserts that the defendant's conduct was authorized or sanctioned by law." Black's Law Dictionary (7 Ed. 1999) 1215. In this sense, a privilege operates as a legal justification or excuse for admittedly tortious conduct. Id. The defendant in a libel action may invoke the defense of "conditional" or "qualified privilege." Hahn v. Kotten (1975),XXXXX2d 237, 243, 72 O.O.2d 134,' 138, 331 N.E.2d 713, 718. See McCartney v. Oblates of St. Francis de Sales (1992), 80 Ohio App.3d 345, 354, 609 N.E.2d 216, 222, jurisdiction denied (1992), 65 Ohio St.3d 1443, 600 N.E.2d 685; Douglas Elec. Corp. v. Grace (1990), 70 Ohio App.3d 7, 12, 590 N.E.2d 363, 366; Hersch, supra, at 374-375, 3 OBR at 438, 445 N.E.2d at 678-679. Where the circumstances of the occasion for the alleged defamatory communications are not in dispute, the determination of whether the occasion gives the privilege is a question of law for the court. Worrell v. Multipress, Inc. (1989),XXXXX3d 241, 248-249, 543 N.E.2d 1277, 1283; Becker v. Toulmin, supra, at 554, 60 O.O. at 505, 138 N.E.2d at 395; Mauk v. Brundage (1903),XXXXX 89, 67 N.E. 152, paragraph two of the syllabus. See McCartney, supra, at 355, 609 N.E.2d at 223; West v. Peoples Banking & Trust Co. (1967), 14 Ohio App.2d 69, 74-75, 43 O.O.2d 197, 200, 236 N.E.2d 679, 682.
No single statement or formula can sufficiently describe when publication of defamatory matter should be conditionally or qualifiedly privileged.A & B-Abell Elevator Co. v. Columbus/Cent. Ohio Bldg. & Constr. Trades Council,XXXXX 3d 1, 7-8 (Ohio 1995) It is generally agreed, however, that the best description was that offered by Baron Parke in Toogood v. Spyring (1834), 149 Eng.Rep. 1044, 1049-1050, 1 C.M. & R. 181, 193: A publication is privileged when it is "fairly made by a person in the discharge of some public or private duty, whether legal or moral, or in the conduct of his own affairs, in matters where his interest is concerned." See Hahn, supra, at 244, 72 O.O.2d at 138, 331 N.E.2d at 718; Prosser & Keeton, The Law of Torts (5 Ed.1984) 825, Section 115; 2 Harper, James & Gray, The Law of Torts (2 Ed.1986) 219, Section 5.26.
For the sake of clarity, however, we note that a defendant's attempt to invoke Ohio's "separate and independent guarantee of protection" for opinions may also be proper in the context of a motion to dismiss for failure to state a claim under Civ.R. 12(B)(6), as was the procedural context in Vail,XXXXX 3d at 283, 649 N.E.2d at 186 (noting the necessity of construing, under Civ.R. 12, all inferences in the plaintiff's favor). This approach is justified because one of the elements of a private figure's cause of action in defamation is a false statement, Davis v. Jacobs (1998), 126 Ohio App. 3d 580, 710 N.E.2d 1185, and a statement deemed to be an opinion as a matter of law cannot be proven false. See Ollman, 750 F.2d at 976. And though words that are defamatory per se normally carry a presumption of falsity, damages, and malice, this is so "unless published on a privileged occasion." Becker v. Toulmin (1956),XXXXX 549, 557, 60 Ohio Op. 502, 506, 138 N.E.2d 391, 397, citing 53 Corpus Juris Secundum, 43, Libel and Slander, Section 8.
Here is another quote:
"In the context of defamation law, the doctrine of privilege relates to the element of a defamation [*6] claim requiring proof that publication of the allegedly defamatory statement was not made under privileged circumstances n3 . The common law has long recognized that in certain circumstances the public interest in uninhibited freedom of expression is so great as to necessitate the relinquishment of the individual right to protect one's reputation through actions for defamation. Bigelow v. Brumley (1941),XXXXX 574, 579, 37 N.E.2d 584; Howard v. Weiss, 1976 Ohio App. LEXIS 7177 (Sept. 16, 1976), Franklin App. No. 76AP-113, unreported (1976 Opinions 3028). Such HN3privileged circumstances are divided into two classes, those which are absolutely privileged, and those which are qualifiedly or conditionally privileged. Bigelow, supra; Costanzo v. Gaul (1980),XXXXX 2d 106, 403 N.E.2d 979, 108; Deoma v. Shaker Heights (1990), 68 Ohio App. 3d 72, 82-83, 587 N.E.2d 425. The two classes of privilege are distinguished by the scope of their protection. Qualified privilege, on the one hand, is available whenever publication is "'fairly made by a person in the discharge of some public or private duty, whether legal or moral, or in [*7] the conduct of his own affairs, in matters where his interest is concerned.'" Prosser and Keeton, The Law of Torts (5 Ed.1984) 825, Section 115 (quoting Toogood v. Spyring , 149 Eng.Rep. 1044). Qualified privilege, however, can be overcome by a showing that publication was made with "actual malice," that is, with knowledge that the statement was false or with reckless disregard for whether it was false or not. Hahn v. Kotten (1975),XXXXX 2d 237, 331 N.E.2d 713, paragraph two of the syllabus.FOOTNOTESn3 The elements of a common-law defamation claim, which includes both libel and slander, are: (1) a false and defamatory statement concerning another; (2) an unprivileged publication of the statement to a third party; (3) fault amounting to at least negligence on the part of the publisher; and (4) either actionability of the statement irrespective of special harm or the existence of special harm caused by the publication. Akron-Canton Waste Oil, Inc. v. Safety-Kleen Oil Serv., Inc. (1992), 81 Ohio App. 3d 591, 601, 611 N.E.2d 955; Restatement of the Law 2d, Torts (1977) 155, Section 558. [*8] Absolute privilege, on the other hand, provides complete protection from liability for defamation. Bigelow, supra. However, HN4the application of absolute privilege has generally been limited to communications made in the course of (1) legislative proceedings, (2) judicial proceedings, or (3) the discharge of a duty of the governor or the head of an executive department of the state. Costanzo, supra, at 109; Bell, supra, at 827; Wrenn v. Ohio Dept. of Mental Health (1984), 16 Ohio App. 3d 160, 162, 474 N.E.2d 1201. See, also, Bigelow, supra, at 580; Prosser and Keeton, at 816-823, Section 114."Marcum v. Rice, 1999 Ohio App. LEXIS 3365, 5-8 (Ohio Ct. App., Franklin County July 20, 1999)
This is a case of defamation per se because you are accussing him of a crime.
Thus, your true defense is of truth of the matter you are accusing him of.
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Thank you for your reply. We have researched qualified privilege fairly extensively. Since it is 'normally' used in a situation such as employer/employee we have wondered if it applies to our situation since as you quoted from Prosser and Keaton it applies to public or private duty, legal or moral, or of personal interests. To us it applies to molestation of our granddaughter. Is there some case law that specifically addresses a use like ours where it is explained that it does not apply?
Our problem with a truth defense is that our only evidence is our testimony and fbi report as to the web cache. As to the newborn nudes...he took several from her feet with the nfocal point of the camera on her pelvis while her head was turned to the side. Her vulva is the only thing clearly visible in the multiploe photos he took. He did not have written permission, or valid reason according to orc 2907.323. Even if our daughter had given himn written permission, there is no way she would have agreed to him photographing her the way he did.
So since the statements in question are us saying he viewed child porn and we have the photos of our granddaughter taken by him we thought about using substantial truth.
But we are very confused by your statement that defamation per se statements are generally accepted as false. Our understanding is that the plaintiff has the burden of proving by proponderence of the evidence that they are false statements. Where is the case law showing that we are going into this having to prove they are true even in the comnplete absense of any evidence as to falsity on his part?
Thanks again for the help.
I should have mentioned that the case has been ongoing for over a year now. So I've read most of the obvious case law like hahn and gosden.
The Miller v Cent quote is exactly what I was referring to. So, you do agree that the argument is valid? Not all of the statements were public. we want to claim privilege for the private statements.
And you do agree that substantial truth would be an appropriate argument using our granddaughters nudes?
Is our testimony as to the web cache considered "evidence" even though we are the co-defendants? We believe this is why he added her to the claim...to diminish her effect as a witness. He has a single statement made by her in a private group with us and our daughter only.
I'm sorry for not rating you yet, but it says rate to finish.
Yes, we have the stills of our granddaughter, as do our daughters and the plaintiff.
We have the FBI report.
So we're correct that he is keeping her involved to lesson her effect as witness? So it would help to get her case dismissed so she can testify for me?
I have been an IT pro for over 20 years...I did a forensic exam of the computer 6 years ago and found the images. I have entered my affidavit into evidence as an expert.
If you read orc 2907.323, there is no wiggle room...photographing a minor in the nude is a felony, even if the minor is your own child, unless there is a medical, religious, legal reason. She is not his child or ward and did not have written permission to photograph her nude.
Sorry...I meant keeping co-defendant involved. He keeps fighting to keep her involved as defendant over 1 statement. When we filed a motion to dismiss because the statement was obtained in violation of 18 USC 2511(1)(a) he argued that he did not have to present all evidence he has. This confused us since it means he has failed to show a prima facie case against co-defndant. Yet the judge agreed. How can he continue without admissible evidence showing a statement had been published to a third party by co-defendant?
We plan to get the unlimited plan on this site due to your help since we don't go to jury trial until august. You have been very helpful. Thank you.
as to the photos of our granddaughter: I woulod be uncomfortable sending them for review...it makes me nervous to just have them in my posession. But I will try to describe them well enough for you to get the gist and sting.
They display that part of her in a position and at an angle that should only ever be seen by the person who changed her diapers, a gynocologist, a man about to perform oral sex on her, and the doctor who gives birth to her children. Now they are full body photos, but from the angle that affords an extremely intimate view of her genetalia. He took multiple photos like that in which he shifted position to maintain that angle on her when she closed her legs a bit.
I was disturbed that he chose to take a photo of her like that to begin with, but could have blown it off as stupidity...if he hadn't repositioned himself and taken at least one additional photo. To me that shows intent to photograph her genetalia in a provocative position. Combined with the photos he had been viewing of other little girls in similar positions (obvious child porn) there is no doubt in my mind he took them intentionally.
Do not send the photos for review. I get the gist of them. It does not matter what I think anyway. You have to convince the court that they violate the statute, not me.
I'm still not certain who the co-Defendant is in this case. Did you counter-sue to bring her in, or did the Plaintiff sue you and someone else?
Me and my first wife, his ex-wife. We are the grandparents and co-defendants. We got back together, but not remarried, when she decided to divorce him. We've lived together since 2006. It was his login on her computer that had the child porn in the browser cache.
The evidence was all gathered for him by our youngest daughter who used our oldest daughter's facebook account to access the private group I created for our oldest daughter on my facebook profile. My oldest is the mother of our 3 granddaughters. She also pretended to be our oldest daughter to draw us into arguments about plaintiff, which is where she got the screencaps.
Well, your ex-wife/co-defendant can provide testimony on your behalf without being dismissed from the case. However, if you can get her dismissed from the case, this would be good.
That's what we figured and why we tried as I said 3 replies back.
Why would the judge say that he does not have to show evidence of a third party seeing/hearing the statements by co-defendant? That would mean he does not have to show evidence of a prima facie case against her.
If we understood that we could resubmit the motion correctly. Do we have to say that he has no prima facie case specifically?
How did this issue come before the judge for him to make this ruling?
She filed a motion to dismiss because the evidence was obtained in violation of 18 USC 2511(1)(a) since our youngest had used the login of our oldest to access the private group on my facebook account, which she did not have access to, in order to get the screencap of co-defendant's statement. It was the only statement put into evidence against her.
The Judge addressed the motion at the pretrial hearing. Plaintiffs counsel said he did not need to provide alo evidence he has to bring a casae against co-defendant. The judge said he was right and denied the motion.
From my research, the judge shoulod have granted the motion since there was no other evidence in the record agqainst her. If Plaintiff has testimony he needed to offer an affidavit or deposition to argue against the motion or he has no prijma facie evidence.
What are we missing here?
The judge is correct. A motion to dismiss is decided on the pleadings, and does not require facts to be assembled.
She would need to file a Motion for Summary Judgment and assert that there is no evidence of publication. This would then require the Plaintiff to put the proof forward and if he does not, the case will be dismissed.
That's great news. We figured it had to be one of those legal process/proceedure/wording issues. But we also thought we were a little crazy too. Thanks for clearing that up.
This is my first time using this site, do all of these count as separate questions? Should I ask a new one under your profile? I don't want to gip you.
No, this was only one question. Start a new question under my new profile for further information.
The system won't let me ask you...says I've already asked a similar question.
So as far as the dismissal:
Since the evidence used against co-defendant in the original complaint was gained illegally, and it says in the code that evidence gained that way and evidence gained as a result is not admissable, isn't a dismissal actually the proper motion? She should not have been on the original complaint to begin with.
Ok, makes sense. We are preparing a second round of Interrogatories and admissions, since the attorney we originally hired only asked about 6. We are going to try and insure we pin him down, so we can't be blind sided when we file a summary judgement motion.
I hope you don't mind if I hit you up again between now and trial.
And thanks for all of the case law you listed. I'd already read some of it, but there's quite a bit I hadn't found. I'm amazed how fast you were able to google that much. It takes me hours to find the right stuff.
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