conditional privilege in Maryland

2016As such, this Court adopted the New York Times standard, requiring evidence of the defendant’s “knowledge of falsity or reckless disregard for truth” for overcoming a conditional privilege “in cases of private defamation.” Marchesi, 283 Md. at 139 , 387 A.2d at 1133 .

2016As such, this Court adopted the New York Times standard, requiring evidence of the defendant’s “knowledge of falsity or reckless disregard for truth” for overcoming a conditional privilege “in cases of private defamation.” Marchesi, 283 Md. at 139 , 387 A.2d at 1133 .

2026Although Maryland appellate courts have cited the decision only for its qualified privilege holding,9 9 Cf. Piscatelli v. Smith, 424 Md. 294, 307 (2012) (citing Wetherby for the proposition that “[i]n some circumstances, an absolute or qualified privilege defeats a claim of defamation, if the defendant did not abuse that privilege.”); Hanrahan v. Kelly, 269 Md. 21, 29-30 (1973) (citing Wetherby for the proposition that “[a]bsent a finding of express malice, a conditional privilege, if not abused, defeats the libel action.”); Orrison v. Vance, 262 Md. 285, 292 (1971) (citing Wetherby in support

2011See McDermott v. Hughley, 317 Md. 12, 28 , 561 A.2d 1038 (1989) ("[A conditional privilege exists] 'when the occasion shows that the communicating party and the recipient have a mutual interest *661 in the subject matter, or some duty with respect thereto.’ " (quoting Simon v. Robinson, 221 Md. 200, 206 , 154 A.2d 911 (1959))); Hanrahan v. Kelly, 269 Md. 21, 28 , 305 A.2d 151, 156 (1973) (“An occasion is conditionally privileged when the circumstances are such as to lead any one of several persons having a common interest in a particular subject matter correctly or reasonably to believe that f

2026Although Maryland appellate courts have cited the decision only for its qualified privilege holding,9 9 Cf. Piscatelli v. Smith, 424 Md. 294, 307 (2012) (citing Wetherby for the proposition that “[i]n some circumstances, an absolute or qualified privilege defeats a claim of defamation, if the defendant did not abuse that privilege.”); Hanrahan v. Kelly, 269 Md. 21, 29-30 (1973) (citing Wetherby for the proposition that “[a]bsent a finding of express malice, a conditional privilege, if not abused, defeats the libel action.”); Orrison v. Vance, 262 Md. 285, 292 (1971) (citing Wetherby in support

2007In Jacron [Sales Co. v. Sindorf, 276 Md. 580 , 350 A.2d 688 (1976)], we reaffirmed the definition of malice necessary to defeat a conditional privilege to defame which we had previously enunciated in Stevenson v. Baltimore [Baseball] Club, 250 Md. 482,486-87 , 243 A.2d 533 (1968): “The privilege may be lost, however, if the plaintiff in a defamation case can show malice, which in this context means not hatred or spite but rather a reckless disregard of truth, the use of unnecessarily abusive language, or other circumstances which would support a conclusion that the defendant acted in an ill-te

2013Abuse of a conditional privilege is usually a question for the fact-finder, id., but a court can decide the question as a matter of law if the plaintiff fails to allege or prove facts that would support a finding of abuse.

2011See McDermott v. Hughley, 317 Md. 12, 28 , 561 A.2d 1038 (1989) ("[A conditional privilege exists] 'when the occasion shows that the communicating party and the recipient have a mutual interest *661 in the subject matter, or some duty with respect thereto.’ " (quoting Simon v. Robinson, 221 Md. 200, 206 , 154 A.2d 911 (1959))); Hanrahan v. Kelly, 269 Md. 21, 28 , 305 A.2d 151, 156 (1973) (“An occasion is conditionally privileged when the circumstances are such as to lead any one of several persons having a common interest in a particular subject matter correctly or reasonably to believe that f

2026Although Maryland appellate courts have cited the decision only for its qualified privilege holding,9 9 Cf. Piscatelli v. Smith, 424 Md. 294, 307 (2012) (citing Wetherby for the proposition that “[i]n some circumstances, an absolute or qualified privilege defeats a claim of defamation, if the defendant did not abuse that privilege.”); Hanrahan v. Kelly, 269 Md. 21, 29-30 (1973) (citing Wetherby for the proposition that “[a]bsent a finding of express malice, a conditional privilege, if not abused, defeats the libel action.”); Orrison v. Vance, 262 Md. 285, 292 (1971) (citing Wetherby in support

2016If a conditional privilege is established, a plaintiff seeking to rebut the privilege must do so by demonstrating that the defendant made the alleged statement with malice, defined as “a person’s actual knowledge that his or her statement is false, coupled with his or her intent to deceive another by means of that statement.” Id. at 307-08 , 35 A.3d at 1148 (citations, brackets, and internal quotation marks omitted).

2002Because there is no conditional privilege to make tortious statements that are not within the scope of one’s public duty, a conditional privilege may be lost by excessive publication to third parties “other than those whose hearing is reasonably believed to be necessary or useful to the protection of the interest[.]” Gen’l Motors Corp. v. Piskor, 277 Md. 165, 173 , 352 A.2d 810 (1976). “[Resolution of whether the [conditional] privilege has been abused ... is ordinarily a jury question.” McDermott, 317 Md. at 30 , 561 A.2d 1038 .

2002Because there is no conditional privilege to make tortious statements that are not within the scope of one’s public duty, a conditional privilege may be lost by excessive publication to third parties “other than those whose hearing is reasonably believed to be necessary or useful to the protection of the interest[.]” Gen’l Motors Corp. v. Piskor, 277 Md. 165, 173 , 352 A.2d 810 (1976). “[Resolution of whether the [conditional] privilege has been abused ... is ordinarily a jury question.” McDermott, 317 Md. at 30 , 561 A.2d 1038 .

2011See McDermott v. Hughley, 317 Md. 12, 28 , 561 A.2d 1038 (1989) ("[A conditional privilege exists] 'when the occasion shows that the communicating party and the recipient have a mutual interest *661 in the subject matter, or some duty with respect thereto.’ " (quoting Simon v. Robinson, 221 Md. 200, 206 , 154 A.2d 911 (1959))); Hanrahan v. Kelly, 269 Md. 21, 28 , 305 A.2d 151, 156 (1973) (“An occasion is conditionally privileged when the circumstances are such as to lead any one of several persons having a common interest in a particular subject matter correctly or reasonably to believe that f

2011See McDermott v. Hughley, 317 Md. 12, 28 , 561 A.2d 1038 (1989) ("[A conditional privilege exists] 'when the occasion shows that the communicating party and the recipient have a mutual interest *661 in the subject matter, or some duty with respect thereto.’ " (quoting Simon v. Robinson, 221 Md. 200, 206 , 154 A.2d 911 (1959))); Hanrahan v. Kelly, 269 Md. 21, 28 , 305 A.2d 151, 156 (1973) (“An occasion is conditionally privileged when the circumstances are such as to lead any one of several persons having a common interest in a particular subject matter correctly or reasonably to believe that f

2017Pursuant to Gohari, supra, 363 Md. at 57 , 767 A.2d 321 , the court found that McCreer’s statements to his manager were protected by a common interest privilege as McCreer’s statements “were made in furtherance of the common interests shared among the Defendant, Young, and other employees.” The court explained that “[t]he communication between Defendant and Young arose out of the employer-employee relationship, between people engaged in a common enterprise or activity.” See Gohari, supra, 363 Md. at 58 , 767 A.2d 321 (defining the conditional privilege based on a common interest).

2017Pursuant to Gohari, supra, 363 Md. at 57 , 767 A.2d 321 , the court found that McCreer’s statements to his manager were protected by a common interest privilege as McCreer’s statements “were made in furtherance of the common interests shared among the Defendant, Young, and other employees.” The court explained that “[t]he communication between Defendant and Young arose out of the employer-employee relationship, between people engaged in a common enterprise or activity.” See Gohari, supra, 363 Md. at 58 , 767 A.2d 321 (defining the conditional privilege based on a common interest).

2025LLC, 482 Md. 343, 390 (2022)).

2025LLC, 482 Md. 343, 390 (2022)).

2025The second sentence contains a conditional clause – “If the Council fails to act to confirm or reject any appointment within 45 days of its submission to the County Council, at its legislative session, by the County 7 The circuit court’s first opinion and declaratory judgment assumed that § 315(A) applied to that position even though the version quoted in that opinion did not include the 2018 language. 15 Executive,” – and a main clause – “the appointment shall stand approved.” Both clauses use the term “appointment.” “When statutory terms are undefined, we often look to dictionary definitions

2025The second sentence contains a conditional clause – “If the Council fails to act to confirm or reject any appointment within 45 days of its submission to the County Council, at its legislative session, by the County 7 The circuit court’s first opinion and declaratory judgment assumed that § 315(A) applied to that position even though the version quoted in that opinion did not include the 2018 language. 15 Executive,” – and a main clause – “the appointment shall stand approved.” Both clauses use the term “appointment.” “When statutory terms are undefined, we often look to dictionary definitions

2016For example, in Lester, 596 A.2d at 69-70 , the Supreme Judicial Court of Maine explained the distinction 9 It should be noted that, unlike Maryland, Pennsylvania has adopted a negligence standard that applies to conditional privileges, as well as private-individual defamation actions: [U]nder Pennsylvania law, once the issue of conditional privilege is raised by a defendant who has been sued by a private figure for defamatory communications concerning matters which are not of public concern, the burden of proof of the plaintiff in order to establish abuse of the conditional privilege is “want

2016The plaintiff must then establish express malice by a preponderance of the evidence or fail in his action.”); Lester v. Powers, 596 A.2d 65, 70 (Me. 1991) (“We do not require clear and convincing evidence, however, to overcome a conditional privilege that arises at common law and not from the First Amendment.” (Citation and footnote omitted)); Pope v. Motel 6, 114 P.3d 277 , 283- 84 (Nev. 2005) (“Under a qualified privilege, the plaintiff must prove by a preponderance of the evidence that the defendant abused the privilege by publishing the defamatory communication with actual malice.” (Footno

2007First, in State v. Sharafeldin, 382 Md. 129, 148, 149 , 854 A.2d 1208, 1219 (2004), Judge Wilner, writing for this Court, explained that S.G. §§ 12-201 and 12-202 were “intended as a conditional waiver of the State’s sovereign immunity in contract actions,” and “must be read together.” (Emphasis added).

2007First, in State v. Sharafeldin, 382 Md. 129, 148, 149 , 854 A.2d 1208, 1219 (2004), Judge Wilner, writing for this Court, explained that S.G. §§ 12-201 and 12-202 were “intended as a conditional waiver of the State’s sovereign immunity in contract actions,” and “must be read together.” (Emphasis added).

1977Wetherby v. Retail Credit Co., 235 Md. 237, 241 , 201 A. 2d 344, 347 (1964).” The Court’s conclusion on that issue was stated at 31-32.

1977Wetherby v. Retail Credit Co., 235 Md. 237, 241 , 201 A. 2d 344, 347 (1964).” The Court’s conclusion on that issue was stated at 31-32.

2016The Supreme Court has stated that statements pertaining to public officials and to public figures on matters of public concern merit special protection in our society; thus, such statements are subject to a conditional privilege—the First Amendment conditional privilege—that is 2 At the time of our decision in Jacron, 276 Md. at 596 , 350 A.2d at 697 , the pertinent section of the Restatement (Second) of Torts was a tentative draft: Restatement (Second) of Torts § 580B (Am.

2016The Supreme Court has stated that statements pertaining to public officials and to public figures on matters of public concern merit special protection in our society; thus, such statements are subject to a conditional privilege—the First Amendment conditional privilege—that is 2 At the time of our decision in Jacron, 276 Md. at 596 , 350 A.2d at 697 , the pertinent section of the Restatement (Second) of Torts was a tentative draft: Restatement (Second) of Torts § 580B (Am.

2007In Jacron [Sales Co. v. Sindorf, 276 Md. 580 , 350 A.2d 688 (1976)], we reaffirmed the definition of malice necessary to defeat a conditional privilege to defame which we had previously enunciated in Stevenson v. Baltimore [Baseball] Club, 250 Md. 482,486-87 , 243 A.2d 533 (1968): “The privilege may be lost, however, if the plaintiff in a defamation case can show malice, which in this context means not hatred or spite but rather a reckless disregard of truth, the use of unnecessarily abusive language, or other circumstances which would support a conclusion that the defendant acted in an ill-te

2007In Jacron [Sales Co. v. Sindorf, 276 Md. 580 , 350 A.2d 688 (1976)], we reaffirmed the definition of malice necessary to defeat a conditional privilege to defame which we had previously enunciated in Stevenson v. Baltimore [Baseball] Club, 250 Md. 482,486-87 , 243 A.2d 533 (1968): “The privilege may be lost, however, if the plaintiff in a defamation case can show malice, which in this context means not hatred or spite but rather a reckless disregard of truth, the use of unnecessarily abusive language, or other circumstances which would support a conclusion that the defendant acted in an ill-te

2017Shirley v. Heckman, 214 Md.App. 34, 44 , 75 A.3d 421 (2013); see also Piscatelli, supra, 424 Md. at 307 , 35 A.3d 1140 (citing Hanrahan, supra, 269 Md. at 29 , 305 A.2d 151 ).

2017Shirley v. Heckman, 214 Md.App. 34, 44 , 75 A.3d 421 (2013); see also Piscatelli, supra, 424 Md. at 307 , 35 A.3d 1140 (citing Hanrahan, supra, 269 Md. at 29 , 305 A.2d 151 ).

2016The Supreme Court has stated that statements pertaining to public officials and to public figures on matters of public concern merit special protection in our society; thus, such statements are subject to a conditional privilege—the First Amendment conditional privilege—that is overcome only by actual malice, ie., “knowledge that [the statement] was false or with reckless disregard of whether it was false or not.” New York Times Co. v. Sullivan, 376 U.S. 254, 279-80 , 84 S.Ct. 710 , 11 L.Ed.2d 686 (1964); Curtis Publ’g Co. v. Butts, 388 U.S. 130, 155 , 87 S.Ct. 1975 , 18 L.Ed.2d 1094 (1967); G

2016The Supreme Court has stated that statements pertaining to public officials and to public figures on matters of public concern merit special protection in our society; thus, such statements are subject to a conditional privilege—the First Amendment conditional privilege—that is overcome only by actual malice, ie., “knowledge that [the statement] was false or with reckless disregard of whether it was false or not.” New York Times Co. v. Sullivan, 376 U.S. 254, 279-80 , 84 S.Ct. 710 , 11 L.Ed.2d 686 (1964); Curtis Publ’g Co. v. Butts, 388 U.S. 130, 155 , 87 S.Ct. 1975 , 18 L.Ed.2d 1094 (1967); G

2007Woodruff v. Trepel, 125 Md.App. 381, 402 , 725 A.2d 612 (1999) (holding that, whether a conditional privilege exists, “is a question of law for the judge”); McDermott, 317 Md. at 28 , 561 A.2d 1038 .

2007Woodruff v. Trepel, 125 Md.App. 381, 402 , 725 A.2d 612 (1999) (holding that, whether a conditional privilege exists, “is a question of law for the judge”); McDermott, 317 Md. at 28 , 561 A.2d 1038 .

2012See Rosenberg, 328 Md. at 683-84 , 616 A.2d at 875-76 .

2012See Rosenberg, 328 Md. at 683-84 , 616 A.2d at 875-76 .

2026Although Maryland appellate courts have cited the decision only for its qualified privilege holding,9 9 Cf. Piscatelli v. Smith, 424 Md. 294, 307 (2012) (citing Wetherby for the proposition that “[i]n some circumstances, an absolute or qualified privilege defeats a claim of defamation, if the defendant did not abuse that privilege.”); Hanrahan v. Kelly, 269 Md. 21, 29-30 (1973) (citing Wetherby for the proposition that “[a]bsent a finding of express malice, a conditional privilege, if not abused, defeats the libel action.”); Orrison v. Vance, 262 Md. 285, 292 (1971) (citing Wetherby in support

2017See Bagwell, supra, 106 Md.App. at 512 , 665 A.2d 297 (citations omitted).

2017See Bagwell, supra, 106 Md.App. at 512 , 665 A.2d 297 (citations omitted).

2016App. 2010) (“‘If you find that the plaintiff has proved by a preponderance of the evidence that defendants[ ] abuse[d the] privilege . . . then the defendants are not entitled to the qualified privilege defense.’” (Alterations in original)); Rutt v. Bethlehems’ Globe Publ’g Co., 484 A.2d 72, 83 (Pa. Super. 1984) (“Consistency, as well as prudence, compels the view that the appropriate standard of proof, in defamation actions where the plaintiff is, as heretofore determined, a private figure, should be one of negligence.”);9 Calero v. Del Chemical Corp., 228 N.W.2d 737, 748 (Wis. 1975) (“[When

2016Rutt, 484 A.2d at 83 (emphasis in original) (citations omitted). - 34 - as follows: Discussion of public officials and public figures on matters of public concern, the U.S. Supreme Court has declared, deserves special favor in a democratic society, and thus such discussion is subject to a conditional privilege—the “First Amendment privilege”—that can be overcome only by clear and convincing evidence of knowledge or disregard of falsity.

2016The Court of Special Appeals held that the circuit court “erred in instructing the jury that the [standard] of proof in overcoming the conditional privilege was clear and convincing evidence rather than by a preponderance of the evidence[.]” Id. at 16 , 123 A.3d at 351.

2016As the Court of Special Appeals explained, “there should be no confusion in those cases where the jury is instructed as to the punitive damages malice standard, clear and convincing evidence, and overcoming the conditional privilege, preponderance of the evidence.” Hosmane, 227 Md.