qualified privilege in Ohio

2026It therefore applied the qualified privilege to “communications between insurers and insureds.” Id. {¶48} Hahn is distinguishable from this case on a number of fronts.

2025Id. {¶114} To defeat a qualified privilege, a plaintiff must establish by clear and convincing evidence that the communication was made with actual malice.

2026“In a qualified privilege case, ‘actual malice’ is defined as acting with knowledge that the statements are false or acting with reckless disregard as to their truth or falsity.” Jacobs v. Frank, 60 Ohio St.3d 111 , (1990) at paragraph two of the syllabus.

2024Public interest alone is not sufficient to establish a qualified privilege, so we look to the Hahn factors. {¶ 42} “The concept of a qualified privilege is based upon public policy and the need to protect the publication of a communication made in good faith.” Jacobs v. Frank, 60 Ohio St.3d 111, 114 (1991), citing Hahn at 245-46 .

2026Id. {¶36} Courts have identified five elements to comprise the qualified privilege: (1) the publication was made in good faith, (2) there was an interest to be upheld, (3) the publication was limited in scope to that interest, (4) the publication was made on the proper occasion, and (5) the publication was done in a proper manner and to the proper parties.

2017Trades Council , 73 Ohio St.3d 1 , 7, 651 N.E.2d 1283 (1995). {¶ 37} A defendant can invoke the defense of qualified privilege to a claim for libel 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 where "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." Hahn v. Kotten , 43 Ohio St.2d 237 , 245-246, 3

2022And the interests of the clients and the cause of justice would be poorly served.” Addressing these concerns, the work-product doctrine provides a qualified privilege protecting the attorney’s mental processes in preparation of litigation, establishing “a zone of privacy in which lawyers can analyze and prepare their client’s case free from scrutiny or interference by an adversary.” Hobley v. Burge (C.A.7, 2006), 433 F.3d 946, 949 .

2020This privilege “provides a qualified privilege protecting the attorney’s mental processes in preparation of litigation, establishing ‘a zone of privacy in which lawyers can analyze and prepare their client’s case free from scrutiny or interference by an adversary.’” Squire Sanders & Dempsey v. Givaudan Flavors Corp., 127 Ohio St.3d 161 , 2010-Ohio-4469 , 937 N.E.2d 533, ¶ 54 , quoting Hobley v. Burge, 433 F.3d 946, 949 (7th Cir.2006).

2020To “defeat the qualified privilege, ‘there must be a showing that [any allegedly defamatory statements] were made with actual malice,’ ” i.e., “with knowledge of [the statements’] falsity or with reckless disregard of whether [the statements] were false or not.” McPeek at ¶ 10 , quoting Evely v. Carlon Co., Div. of Indian Head, Inc., 4 Ohio St.3d 163, 165 , 447 N.E.2d 1290 (1983); Sullins at ¶ 20.

2020To “defeat the qualified privilege, ‘there must be a showing that [any allegedly defamatory statements] were made with actual malice,’ ” i.e., “with knowledge of [the statements’] falsity or with reckless disregard of whether [the statements] were false or not.” McPeek at ¶ 10 , quoting Evely v. Carlon Co., Div. of Indian Head, Inc., 4 Ohio St.3d 163, 165 , 447 N.E.2d 1290 (1983); Sullins at ¶ 20.

2022See, e.g., Smith v. Ameriflora, 1992, Inc., 96 Ohio App.3d 179, 189 (10th Dist.1994) ("Ohio courts have recognized that the qualified privilege defense is applicable to actions for intentional infliction of emotional distress."); Gintert v. WCI Steel, Inc., 11th Dist.

2003See Smith v. Ameriflora 1992, Inc. (1994), 96 Ohio App.3d 179 , appeal not allowed, 71 Ohio St.3d 1427 (holding that statements by officers of construction management firm made regarding a construction coordinator for an exposition were qualifiedly privileged where the statements were made to a sponsor of the exposition for which the firm had been hired); Wilson, supra (holding a letter from a company representative to a contractor for the company regarding the contractor's employee was protected by common business interest privilege); Gaumont v. Emery Air Freight Corp. (1989), 61 Ohio App.3d

2026“The doctrine of qualified immunity generally shields public officials performing discretionary functions from liability for civil damages to the extent that their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Cleveland Constr., Inc. v. Cincinnati, 2006-Ohio-6452, ¶ 80 (1st Dist.), overruled on other grounds, Cleveland Constr., Inc. v. Cincinnati, 2008-Ohio-2337 , citing Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).

2024Qualified immunity protects state officials against liability under 42 U.S.C. § 1983 so long as ‘their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person 19. would have known.’” Reilly v. Vadlamudi, 680 F.3d 617, 623 (6th Cir. 2012), quoting Cochran v. Gilliam, 656 F.3d 300, 306 (6th Cir. 2011), quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). {¶ 50} R.C. 2744.03 governs defenses and immunities available in civil actions brought against a political subdivision or an employee of a political subdivision to recover damages allegedly

2025Leasing I, L.L.C. v. Tilton, 2012-Ohio-4668 , ¶ 24 (10th Dist.), citing Upjohn Co. at 396. {¶27} The work-product doctrine, on the other hand, “provides a qualified privilege protecting the attorney’s mental processes in preparation of litigation . . . .” (Emphasis sic.) Squire, Sanders & Dempsey, L.L.P. v. Givaudan Flavors Corp., 2010-Ohio-4469, ¶ 55 .

2022See Squire, Sanders & Dempsey, L.L.P. v. Givaudan Flavors Corp., 127 Ohio St.3d 161 , 2010-Ohio-4469 , 937 N.E.2d 533, ¶ 54-55 (discussing work product doctrine, which provides a qualified privilege protecting an attorney’s mental processes in preparation of litigation);4 DMS Constr.

2022Ohio courts have also recognized the existence of a qualified privilege as to "church interests." See Mosley at 637 (church deacons entitled to defense of qualified privilege regarding letter distributed to church congregation concerning "various church interests" and expressing deacons' belief that reverend's health problems prevented him from performing his duties effectively); Austin v. Peterson, 9th Dist.

2022See Mosley at 638 (no malice where church deacons "did have a factual foundation for their opinion concerning the effect of [the pastor's] health on his performance"). {¶ 59} Accordingly, as there are no genuine issues of material fact that the statements at issue are entitled to a qualified privilege, we find no error with the trial court's determination that appellees are entitled to judgment as a matter of law on appellant's claims of defamation, slander, libel, and false-light invasion of privacy. {¶ 60} Appellant further contends the trial court erred in failing to find genuine issues of

2026Malley v. Briggs, 475 U.S. 335, 341 (1986) (“As the qualified immunity defense has evolved, it provides ample protection to all but the plainly incompetent or those who knowingly violate the law.”).

2021Cuyahoga No. 108644, 2020-Ohio-4131, ¶ 26 , quoting Harlow at 818. {¶ 22} Qualified immunity gives ample room for mistaken judgments and protects "all but the plainly incompetent or those who knowingly violate the law." Malley v. Briggs, 475 U.S. 335, 341 , 106 S.Ct. 1092 (1986).

2026In Imbler v. Pachtman, 424 U.S. 409, 429 (1976), the Court explained that although government officials may enjoy immunity from civil liability, the public is not powerless to deter misconduct or to punish it when it occurs because government officials remain subject to criminal liability.

2018"However, 'absolute immunity does not extend to a prosecutor engaged in essentially investigative or administrative functions'[;] * * * [w]hile performing these functions, he is entitled to only a qualified immunity." (Citation omitted.) Id. {¶ 13} The trial court dismissed the Kennedys' Complaint on the grounds that Specht and Iarocci were entitled to prosecutorial immunity under the facts alleged.

2025They further claim the trial court erred in finding that Perez’s statements to law enforcement were protected by the defense of qualified privilege. {¶ 39} “Qualified privilege is an affirmative defense to a defamation claim, and the defendant must plead it separately from a general denial.” Anderson v. WBNS-TV, Inc., 2024-Ohio-4880, ¶ 22 (10th Dist.), citing Cooper v. Grace Baptist Church, Inc., 81 Ohio App.3d 728, 734 (10th Dist. 1992), citing Douglas Elec.

2021"If a claimant establishes a prima facie case of defamation, a defendant may then invoke a conditional or qualified privilege." Jackson at ¶ 9, citing A & B-Abell at 7, citing Hahn v. Kotten, 43 Ohio St.2d 237, 243 (1975). {¶ 17} "A qualified privilege is an affirmative defense to a claim of defamation." Morrison v. Gugle, 142 Ohio App.3d 244, 258 (10th Dist.2001), citing Cooper v. Baptist Church of Columbus, Ohio, Inc., 81 Ohio App.3d 728, 734 (10th Dist.1992), citing Hahn at 243 .

2026Fischer v. Kent State Univ., 2015-Ohio-3569, ¶ 25 (10th Dist.) (quotations omitted). {¶13} “‘“It is generally held that if the defendant publishes the defamatory words to the person interested at the latter’s request or solicitation, there is such a relationship between the parties to justify the communication.”’” Hahn at 246 , quoting West v. Peoples Banking & Trust Co., 14 Ohio App.2d 69, 74 (4th Dist. 1967), quoting 1 Harper and James, The Law of Torts, page 445, Section 5.26. {¶14} “A qualified privilege may be defeated only if a claimant proves with convincing clarity that the publisher a

2016The purpose of the privilege is to ensure " 'the necessity of full and unrestricted communication concerning a matter in which the parties have an interest or duty.' " Id. at 246 , quoting West v. People's Banking & Trust Co., 14 Ohio App.2d 69, 72 (4th Dist.1967). {¶ 44} A qualified privilege "can be defeated only by a clear and convincing showing that the communication was made with actual malice.

2024“A privileged communication is one which, except for the occasion on which or the circumstances under which it is made, would be defamatory, and actionable.” Id., citing 50 American Jurisprudence 2d, Libel and Slander, Section 192, at 695 (1995). {¶ 33} A qualified privilege may arise under the common law or by statute.

2001Such a qualified privilege may be overcome by “actual malice.” Costanzo v. Gaul (1980), 62 Ohio St.2d 106, 111 , 16 O.O.3d 134, 137 , 403 N.E.2d 979, 983 .

2017Gray v. General Motors Corp., 52 Ohio App.2d 348 , 370 N.E.2d 747 (8th Dist.1977). {¶85} The elements of qualified privilege are: “[A] defendant must establish that (1) he acted in good faith; (2) there was an interest to be upheld; (3) the statement was limited in its scope to the purpose of upholding that interest; (4) the occasion was proper; and (5) the publication was made in a proper manner and only to proper parties.” Mosley v. Evans, 90 Ohio App.3d 633, 636 , 630 N.E.2d 75 (11th Dist.1993), citing Hahn at 246 . {¶86} A qualified privilege may be defeated only by clear and convincing ev

2017Gray v. General Motors Corp., 52 Ohio App.2d 348 , 370 N.E.2d 747 (8th Dist.1977). {¶85} The elements of qualified privilege are: “[A] defendant must establish that (1) he acted in good faith; (2) there was an interest to be upheld; (3) the statement was limited in its scope to the purpose of upholding that interest; (4) the occasion was proper; and (5) the publication was made in a proper manner and only to proper parties.” Mosley v. Evans, 90 Ohio App.3d 633, 636 , 630 N.E.2d 75 (11th Dist.1993), citing Hahn at 246 . {¶86} A qualified privilege may be defeated only by clear and convincing ev

2017"Discovery was hardly intended to enable a learned profession to perform its functions either without wits or on wits borrowed from the adversary." Id. at 516 (Jackson, J. concurring). {¶ 14} The Supreme Court of Ohio has explained that "the work-product doctrine provides a qualified privilege protecting the attorney's mental processes in preparation of litigation, establishing 'a zone of privacy in which lawyers can analyze and prepare their client's case free from scrutiny or interference by an adversary.' " (Emphasis sic.) Squire, Sanders & Dempsey, L.L.P. v. Givaudan Flavors Corp., 127 Ohi

2016The United States Supreme Court in Hickman v. Taylor, 329 U.S. 495, 508 , 67 S.Ct. 385 , 91 L.Ed. 451 (1947) explained that the work-product doctrine is a qualified privilege that protects the mental processes of the attorney.

2026Safety, 2017-Ohio-9199, ¶ 36 (10th Dist.). {¶11} Defendant, in its motion for summary judgment, argues that “the allegedly defamatory statements are protected by qualified privilege . . . .” (Motion, p. 5.) “One of the defenses to a defamation claim is one of qualified privilege, in which the interest that the defendant is seeking to vindicate is conditioned upon publication in a reasonable manner and for a proper purpose.” DeGarmo v. Worthington City Schools Bd. of Ed., 2013-Ohio-2518 , ¶ 18 (10th Dist.). “‘A qualified privilege is an affirmative defense to a Case No. 2024-00832JD -4- DECISIO

2021"If a claimant establishes a prima facie case of defamation, a defendant may then invoke a conditional or qualified privilege." Jackson at ¶ 9, citing A & B-Abell at 7, citing Hahn v. Kotten, 43 Ohio St.2d 237, 243 (1975). {¶ 17} "A qualified privilege is an affirmative defense to a claim of defamation." Morrison v. Gugle, 142 Ohio App.3d 244, 258 (10th Dist.2001), citing Cooper v. Baptist Church of Columbus, Ohio, Inc., 81 Ohio App.3d 728, 734 (10th Dist.1992), citing Hahn at 243 .

2009Piphus v. Blum (1995), 108 Ohio App.3d 218 , 225 , 670 N.E.2d 518 ; (citing Mitchell v. Forsyth (1985), 472 U.S. 511 , 526 , 105 S.Ct. 2806 , 86 L.Ed.2d 411 ). {¶ 71} "Qualified immunity is a question of law, not fact, which can be properly determined by summary judgment." Cook v. Cincinnati (1995), 103 Ohio App.3d 80 , 85 , 658 N.E.2d 814 (citing Harlow v. Fitzgerald (1982), 457 U.S. 800 , 818 ; Dominque v. Telb (C.A.6, 1987), 831 F.2d 673 , 676 ).

2009Piphus v. Blum (1995), 108 Ohio App.3d 218 , 225 , 670 N.E.2d 518 ; (citing Mitchell v. Forsyth (1985), 472 U.S. 511 , 526 , 105 S.Ct. 2806 , 86 L.Ed.2d 411 ). {¶ 71} "Qualified immunity is a question of law, not fact, which can be properly determined by summary judgment." Cook v. Cincinnati (1995), 103 Ohio App.3d 80 , 85 , 658 N.E.2d 814 (citing Harlow v. Fitzgerald (1982), 457 U.S. 800 , 818 ; Dominque v. Telb (C.A.6, 1987), 831 F.2d 673 , 676 ).

2001This qualified privilege arises from communications “made in good faith * * * between an employer and an" employee, or between two employees concerning a third employee * * *.” Horsley v. Wal-Mart, Inc. (Dec. 23, 1997), Lawrence App. No. 97CA17, unreported, 1997 WL 799492 , at * 5, citing Evely v. Carlton Co. (1983), 4 Ohio St.3d 163, 165 , 4 OBR 404, 406-407, 447 N.E.2d 1290, 1292-1293 , and Hanly v. Riverside Methodist Hosp. (1991), 78 Ohio App.3d 73, 81 , 603 N.E.2d 1126, 1131-1132 .

2001This qualified privilege arises from communications “made in good faith * * * between an employer and an" employee, or between two employees concerning a third employee * * *.” Horsley v. Wal-Mart, Inc. (Dec. 23, 1997), Lawrence App. No. 97CA17, unreported, 1997 WL 799492 , at * 5, citing Evely v. Carlton Co. (1983), 4 Ohio St.3d 163, 165 , 4 OBR 404, 406-407, 447 N.E.2d 1290, 1292-1293 , and Hanly v. Riverside Methodist Hosp. (1991), 78 Ohio App.3d 73, 81 , 603 N.E.2d 1126, 1131-1132 .

2012Qualified immunity “is an immunity from suit rather than a mere defense to liability; * * * it is effectively lost if a case is erroneously permitted to go to trial.” (Emphasis sic.) Id. at 526 .

2012Qualified immunity provides immunity not only from liability but from the “consequences” of a suit, including “‘the general costs of subjecting officials to the risks of trial-distraction of officials from their governmental duties, inhibition of discretionary action, and deterrence of able people from public service.’” Id., quoting Harlow v. Fitzgerald (1982), 457 U.S. 800, 816 , 102 S.Ct. 2727 , 73 L.Ed.2d 396 .

2020Immediate appellate review of a qualified immunity denial “is a federal procedural right that simply does not apply in a nonfederal forum.” Johnson v. Fankell (1997), 520 U.S. 911, 912 , 138 L.

2020Immediate appellate review of a qualified immunity denial “is a federal procedural right that simply does not apply in a nonfederal forum.” Johnson v. Fankell (1997), 520 U.S. 911, 912 , 138 L.

2021Accordingly, Ohio courts have consistently applied the qualified immunity recognized in Scholler and Simon to third party claims of tortious conduct directly related to an attorney’s representation of a client even when the cause of action asserted is not “legal malpractice.” See Hahn at ¶ 55-69 (applying rule to invasion of privacy claim against third party attorney); Omega Riggers at ¶ 22-44 (analyzing claims for negligence and violation of a fiduciary duty in the context of legal malpractice); Moffit v. Litteral, 2d Dist.

2007Hahn v. Satullo , 156 Ohio App.3d 412 , 2004-Ohio-1057 , at 69.

1999(Citations omitted.) Further, Ohio law has long held that "communications between an employer and an employee or between two employees concerning the conduct of a third or former employee made in good faith concerning a matter of common interest are within the doctrine of qualified privilege." Gaumont v. Emery Air Freight Corp. (1989), 61 Ohio App.3d 277 , 289 ; see, also, Holloman v. Rutman Wine Co. (1983), 11 Ohio App.3d 257 ; Gray v. Central Motors Corp. (1977), 52 Ohio App.2d 348 ; McKenna v. Mansfield Leland Hotel Co. (1936), 55 Ohio App. 163 .

1999(Citations omitted.) Further, Ohio law has long held that "communications between an employer and an employee or between two employees concerning the conduct of a third or former employee made in good faith concerning a matter of common interest are within the doctrine of qualified privilege." Gaumont v. Emery Air Freight Corp. (1989), 61 Ohio App.3d 277 , 289 ; see, also, Holloman v. Rutman Wine Co. (1983), 11 Ohio App.3d 257 ; Gray v. Central Motors Corp. (1977), 52 Ohio App.2d 348 ; McKenna v. Mansfield Leland Hotel Co. (1936), 55 Ohio App. 163 .

2013The distinction between these two classes is that the absolute privilege protects the publisher of a false, defamatory statement even though it is made with actual malice, in bad faith and with knowledge of its falsity; whereas the presence of such circumstances will defeat the assertion of a qualified privilege. * * * Id. at 505 , quoting Bigelow v. Brumley, 138 Ohio St. 574, 579-580 (1941). 5 {¶10} A statement is qualifiedly privileged if it is made in good faith, on a subject in which the speaker has an interest or duty, limited in scope to this purpose, and made on a proper occasion, in a

2003The distinction between these two classes is that the absolute privilege protects the publisher of a false, defamatory statement even though it is made with actual malice, in bad faith and with knowledge of its falsity; whereas the presence of such circumstances will defeat the assertion of a qualified privilege." Id. at 505 , quoting Bigelow v. Brumley (1941), 138 Ohio St. 574 , 579-580 ; cf. Haller, supra (noting the elements of malicious prosecution include "a criminal prosecution instituted against [plaintiff] by these [defendants], the criminal action was resolved favorably to [plaintiff]

1995Monell v. New York City Dept. of Social Serv. (1978), 436 U.S. 658 , 98 S.Ct. 2018 , 56 L.Ed.2d 611 ; Owen v. City of Independence (1980), 445 U.S. 622 , 100 S.Ct. 1398 , 63 L.Ed.2d 673 .

1995Monell v. New York City Dept. of Social Serv. (1978), 436 U.S. 658 , 98 S.Ct. 2018 , 56 L.Ed.2d 611 ; Owen v. City of Independence (1980), 445 U.S. 622 , 100 S.Ct. 1398 , 63 L.Ed.2d 673 .