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.
A publication is
conditionally or qualifiedly privileged where circumstances exist, or are
reasonably believed by the defendant to exist, which cast on him the duty of
making a communication to a certain other person to whom he makes such
communication in the performance of such duty, or whether the person is so
situated that it becomes right in the interests of society that he should tell
third persons certain facts, which he in good faith proceeds to do. [***16]
This general idea has been otherwise expressed as follows: HN5A communication
made in good faith on any subject matter in which the person communicating has
an interest, or in reference to which he has a duty, is privileged if made to a
person having a corresponding interest or duty, even though it contains matter
which, without this privilege, would be actionable, and although the duty is not
a legal one, but only a moral or social duty of imperfect obligation. The
essential elements of a conditionally privileged communication may accordingly
be enumerated as 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. The privilege arises from the necessity of full and
unrestricted communication concerning a matter in which the parties have an
interest or duty, and is not restricted within any narrow limits."'" (Emphasis
omitted.) Id. at 245-246, 72 O.O.2d at 139, 331 N.E.2d at 719, quoting 33
American Jurisprudence (1941) 124-125, Libel and Slander, Section
HN6The defense of qualified privilege is deeply rooted in public
policy. It applies in a variety of situations where [***17] society's interest
in compensating a person for loss of reputation is outweighed by a competing
interest that demands protection. Accordingly, the privilege does not attach to
the communication, but to the [*9] occasion on which it is made. It does not
change the actionable quality of the publication, but heightens the required
degree of fault. This affords some latitude for error, thereby promoting the
free flow of information on an occasion worthy of protection. Jacobs v. Frank
(1991),XXXXX3d 111, 114, 573 N.E.2d 609, 612; Surace v. Wuliger (1986),
25 Ohio St.3d 229, 231, 25 OBR 288, 290, 495 N.E.2d 939, 941; Hahn, supra, at
244, 72 O.O.2d at 138, 331 N.E.2d at 718-719; Prosser & Keeton, The Law of
Torts, supra, at 824-825, Section 115; 2 Harper, James & Gray, The Law of
Torts, supra, [**1291] Sections 5.21 and 5.25; 50 American Jurisprudence 2d
(1970), Libel and Slander, Sections 195 and 196.
HN7One type of interest
protected by a qualified privilege is the public interest. The "public interest"
privilege "involves communications made to those who may be expected to take
official action of some kind for the protection of some interest of the public."
[***18] Prosser & Keeton, The Law of Torts, supra, at 830, Section 115.
See, also, 3 Restatement of the Law 2d, Torts (1977) 281, Section 598.
A & B-Abell Elevator Co. v. Columbus/Cent. Ohio Bldg. & Constr.
Trades Council,XXXXX 3d 1, 8-9 (Ohio 1995)
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
n3 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
[*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
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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