Embers Supper Club, Inc. v. Scripps-Howard Broadcasting Co. , 9 Ohio St. 3d 22 ( 1984 )

Clifford F. Brown, J.

The directed verdict for defendant requires determining the standard or rule for imposing liability upon a defendant which publishes false statements concerning a plaintiff who is not a public official or public figure. Since plaintiff is not a public official or public figure, the holdings in New York Times Co. v. Sullivan (1964), 376 U.S. 254, and Curtis Publishing Co. v. Butts (1967), 388 U.S. 130, requiring proof of actual malice by defendant are inapplicable.

In New York Times Co. v. Sullivan, the United States Supreme Court held that a “public official” could not maintain a suit for defamation without showing by clear and convincing evidence that the publisher acted with actual malice. In Curtis Publishing Co. v. Butts, the court extended the actual malice standard to “public figures.” This standard was further expanded in 1971 when the Supreme Court decided the case of Rosenbloom v. Metromedia, Inc. (1971), 403 U.S. 29. In Rosenbloom, the court, in a plurality opinion, extended the actual malice standard to private individuals where the matter reported was of concern to the public.

Applying the Rosenbloom standard, the directed verdict granted defendant would have been appropriate since there was an absence of showing of actual malice on the part of WCPO-TY in its news reports. However, the United States Supreme Court in 1974, retreated from its extension of the Sullivan standard to private individuals. The case which expressed this move was Gertz v. Robert Welch, Inc. (1974), 418 U.S. 323. In Gertz, the necessity of proving actual malice in defamation suits by private individuals against media defendants was struck down. The court found that the individual states should be permitted to set the standard of proof in cases where an allegedly defamatory statement is published by a media defendant concerning a private individual. The only limitation on this was that a state would not be permitted to 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.” Gertz v. Robert Welch, Inc., at 347.

This court has not enunciated a standard of review for defamation actions involving private individuals and the media. A majority of other jurisdictions when faced with this responsibility have set an ordinary negligence standard which must be shown by a preponderance of the evidence. See Peagler v. Phoenix Newspapers, Inc. (1977), 114 Ariz. 309, 560 P. 2d 1216; Dodrill v. Arkansas Democrat Co. (1979), 265 Ark. 628, 590 S.W. 2d 840, certiorari denied (1980), 444 U.S. 1076.¹

We are persuaded that the negligence standard of review is appropriate in this area. In cases involving defamation of private persons, where a prima facie showing of defamation is made by the plaintiff, the question which a jury must determine by a preponderance of evidence is whether the defendant acted reasonably in attempting to discover the truth or falsity or defamatory character of the publication. See, e.g., Peagler v. Phoenix Newspapers, Inc., supra, at 315; Thomas H. Maloney & Sons, Inc. v. E. W. Scripps Co. (1974), 43 Ohio App. 2d 105 [72 O.O.2d 313].

This standard is applicable to the factual stance in this case. It was error to direct a verdict for the defendant. We reverse.

Defendant further contends it is not liable as a matter of law, and that a directed verdict for defendant was proper, because defendant was privileged to publish government information without incurring liability by reason of R.C. 2317.05 which in pertinent part reads:

“The publication of a fair and impartial report of * * * the issuing of any warrant, * * * or the filing of any * * * other document in any criminal or civil cause in any court of competent jurisdiction, or of a fair and impartial report of the contents thereof, is privileged * * This contention is without merit because the publication in this case was not mere reporting of the information included in a warrant or other document but included references to bookmaking operations and Elmwood Place which were not a part of official records.

Since defendant’s publication was not within the protections of R.C. 2317.05 it does not escape the rule imposing liability because of the common-law privilege defined in Restatement of the Law, Torts 2d (1977) 297, Section 611:

“The publication of defamatory matter * * * in a report of an official action or proceeding * * * is privileged if the report is accurate and complete or a fair abridgement of the occurrence reported.”

Defendant also contends the directed verdict was proper because plaintiff failed to prove actual injury or damages. This contention is without merit. Plaintiff’s chief executive officer testified concerning the business loss of plaintiff resulting from the defamatory publication, thus creating an issue of general and special damages to plaintiff. A corporate plaintiff has a right to recover for its economic injury. Golden North Airways v. Tanana Publishing Co. (C.A. 9, 1954), 218 F. 2d 612, 624.

For these reasons the judgment of the court of appeals is reversed, and the cause is remanded to the court of common pleas for a new trial.

Judgment reversed and cause remanded.

Celebrezze, C.J., Sweeney and J. P. Celebrezze, JJ., concur. W. Brown, Locher and Holmes, JJ., dissent.

1 Phillips v. Evening Star Newspaper (C.A.D.C. 1980), 424 A. 2d 78, certiorari denied (1981), 451 U.S. 989; Karp v. Miami Herald Publishing Co. (Fla. App. 1978), 359 So. 2d 580, appeal dismissed (1978), 365 So. 2d 712; Cahill v. Hawaiian Paradise Park Corp. (1975), 56 Hawaii 522, 543 P. 2d 1356; Troman v. Wood (1976), 62 Ill. 2d 184, 340 N.E. 2d 292; McCall v. Courier-Journal & Lousiville Times (Ky. 1981), 623 S.W. 2d 882; Gobin v. Globe Publishing Co. (1975), 216 Kan. 223, 531 P. 2d 76; Stone v. Essex County Newspapers, Inc. (1975), 367 Mass. 849, 330 N.E. 2d 161; Jacron Sales Co. v. Sindorf (1976), 276 Md. 580, 350 A. 2d 688; Madison v. Yunker (1978), 180 Mont. 54, 589 P. 2d 126; McCusker v. Valley News (1981), 121 N.H. 258, 428 A. 2d 493; Marchiondo v. Brown (1982), 98 N.M. 394, 649 P. 2d 462; Martin v. Griffin Television, Inc. (Okla. 1976), 549 P. 2d 85; DeCarvalho v. DaSilva (R.I. 1980), 414 A. 2d 806; Memphis Publishing Co. v. Nichols (Tenn. 1978), 569 S.W. 2d 412; Foster v. Laredo Newspapers, Inc. (Tex. 1976), 541 S.W. 2d 809, certiorari denied (1977), 429 U.S. 1123; Seegmiller v. KSL, Inc. (Utah 1981), 626 P. 2d 968; and Taskett v. King Broadcasting Co. (1976), 86 Wash. 2d 439, 546 P. 2d 81.