A & B-Abell Elevator Co. v. Columbus/Cent. Ohio Bldg. & Constr. Trades Council8/2/1995
ALICE ROBIE RESNICK, J.
The pivotal issue in this case is whether the communications by appellants and cross-appellees to DAS and the city were published on a privileged occasion. If a conditional or qualified privilege extends to those who provide information to government officials in connection with the qualifications of bidders for public-work contracts, then only two issues remain. The first is whether Abell presented sufficient evidence at trial regarding "actual malice" to withstand a directed verdict on its defamation claim. If not, the second issue becomes whether Abell is nevertheless, entitled to pursue its other claims for tortious interference and unlawful disparagement.
In Ohio, "libel" 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), 165 Ohio St. 549, 553, 60 O.O. 502, 504, 138 N.E.2d 391, 395; Cleveland Leader Printing Co. v. Nethersole (1911), 84 Ohio St. 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 defendant in a libel action may invoke the defense of "conditional" or qualified privilege." Hahn v. Kotten (1975) 43 Ohio St.2d 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 vsMultipress, Inc. (1989), 45 Ohio St.3d 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), 68 Ohio St. 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. 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 if 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.
In Hahn, this court explained further that:
"`"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 who
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