- What is Ohio’s Definition of Defamation?
- Important Defamation Requirements & Formalities
- Public Persons vs. Private Persons: Which One Am I?
- Common Defenses to Defamation
- Additional Important Defamation Nuances in Ohio
- Frequently Asked Questions
- Work With the Ohio Defamation Removal Lawyers of Minc Law Today!
What is Ohio’s Definition of Defamation?
Defamation is an all encompassing legal term for the communication of a false statement of fact to a third-party, causing harm to a person’s reputation. Defamation is considered a civil wrong, and can also be referred to as the tort of defamation. It can be classified into two categories:
- Libel: a written or published communication of a false statement of fact damaging a person’s reputation, and
- Slander: a spoken communication of a false statement of fact damaging a person’s reputation.
Ohio takes a broader stance towards defamation, also known as defamation of character, and defines it as:
“A false statement that: causes injury to a person’s reputation; exposes him to public hatred, contempt, ridicule, shame, or disgrace; or affects him adversely in his trade or business.”
But, what does a plaintiff need to prove in order to succeed in his/her defamation claim?
For a plaintiff to succeed in his/her tort of defamation claim, Ohio requires they prove the following five elements. (Gosden v. Louis, 116 Ohio App.3d 195, 206 (9th Dist. 1996)).
Five Elements of Defamation
- A false statement:
- About the plaintiff:
- Published without privilege to a third party:
- With fault of at least negligence on the part of the Defendant: and
- That was either: (a) defamatory per se or (b) caused special harm to the Plaintiff.
Let’s dive into this definition a little further.
- A false statement is an untrue statement asserted as fact, that is unsubstantiated and unprotected by the law,
- The statement must concern and be about the plaintiff,
- It must be communicated in a written or spoken manner to a third party and not legally permitted (please see Section 4: Common Defenses to Defamation),
- The defendant must have communicated the statement negligently (or with actual malice, please see Section 3: Public Persons vs. Private Persons) and without the reasonable prudence and care an ordinary person would exercise, and
- The statement can either be classified as defamatory per se (an inherently defamatory statement), or caused special damage to the plaintiff’s reputation.
Online Reputation Repair Tip: Google Alerts is a powerful tool for monitoring your online reputation. Enter a search query in the first field, such as your name or business’s name, to be notified anytime such query appears across Google’s search results or news articles.
What is Ohio’s Pleading Standard for Defamation?
Pleadings are specific formal documents filed with the court stating a party’s basic positions and claims against the defendant. Some common pre-trial pleadings include:
- Complaint: where the plaintiff presents their version of the facts, issues of the case, and specifies damages.
- Answer: the defendants response to the plaintiff’s complaint, usually explaining why the plaintiff shouldn’t prevail and any additional facts or excuses.
- Reply: either party may file a reply, which is an answer to new allegations, facts, or excuses raised in earlier pleadings.
- Counterclaim: sometimes a defendant will argue they have in fact been injured by the plaintiff in some way and request the plaintiff to pay damages via a claim of their own.
Depending on the nature of the claim, some pleadings have heightened requirements, such as; specificity, plausibility, and other procedural requirements.
As set forth in Hedrick v. Ctr. for Comprehensive Alcoholism Treatment, 7 Ohio App.3d 211, 215 (1st Dist.1982), Ohio has NO special pleading requirements for defamation claims.
Plaintiffs need not plead the defamatory statements verbatim, and their pleadings will be sufficient and adequate as long as they “allege the substance of the allegedly defamatory statements.”
What is ‘Defamation Per Se’?
Defamation per se is the legal principle that certain types of statements are so egregious and inherently harmful that they are assumed to be damaging to a person’s reputation.
Defamation per se can also be referred to as libel per se or slander per se, depending on whether the statement is written or spoken. Plaintiffs subjected to a statement classified as defamation per se do not need to prove the fifth element of defamation in their claim; damages.
Ohio defines defamation per se as a statement or words susceptible to “but one meaning,” and that meaning is “an opprobrious one.” Simply put, an “opprobrious” meaning is an:
- Disparaging, and
- Defamatory one.
But, how do courts determine whether a defamatory statement has only one meaning?
When the statement doesn’t require or need extrinsic evidence (external and explanatory evidence), nor innuendo to harbor its defamatory meaning. Certain statements are so inherently malicious and defamatory, that additional evidence explaining the nature of the statement won’t suffice. Bigelow v. Brumley, 138 Ohio St. 574 (1941).
For a statement to constitute defamation per se in Ohio, the statement “must fit within one of four classes:
- The words import a charge a charge of an indictable offense involving moral turpitude or infamous punishment;
- The words impute some offensive or contagious disease calculated to deprive a person of society;
- The words tend to injure a person in his trade or occupation; ….
- The words tend to subject a person to public hatred, ridicule, or contempt.”
Most states take a rather rigid stance towards defamation per se classes, and limit it to three or four specific classes of statements. Ohio’s fourth class leaves the door open, widening the scope of statements that could be considered defamatory per se.
Here are several examples of statements that Ohio courts ruled to be defamatory per se:
- Infamous punishment
- Statements alleging the plaintiff was “convicted of a felony” and “lied” on his employment application. Earp v. Kent State Univ., 2010-Ohio-5904 (Ct. Cl. 2010).
- Accusations a husband was a pedophile and viewed child pornography. Wilson v. Wilson, 2007-Ohio-178 (2nd Dist. Montgomery 2007).
- Offensive & contagious disease
- Injury to trade or occupation
- A letter alleging a company’s workers were “unprofessional” and had engaged in voyeurism. Gosden v. Louis, 116 Ohio App. 3d 195, 227 (1996).
- Public hatred, ridicule, or contempt
- Websites created and posted on, spreading information that the plaintiff lost judgments to pay unsettled debts because a genuine issue of material fact existed as to whether the information was false. Nicolazzo v. Yoingco, 149 Ohio Misc.2d 44, 53-54 (2007).
Keep in mind that Ohio courts will not classify a statement as defamatory per se when the statement was spoken in a manner that an average listener would understand it to be merely a rumor.
For example, in Sturdevant v. Likley, 2013-Ohio-987 (9th Dist. Medina 2013), an Ohio Court found the defendant did not defame a plaintiff in an online video of a public meeting where the defendant said, “Let me tell you Honey, if all the rumors around here were true, then obviously you’re having an affair[.].”
Although false and harmful, there was no defamation because the statement was spoken in a manner that an average listener would understand as merely a rumor and offered “in the context of making a point about not relying on rumors.”
Defamation Per Quod (Libel Per Quod & Slander Per Quod)
In contrast to defamation per se in Ohio, which requires statements be defamatory on their face and fall into one of four categories, defamation per quod, also known as libel per quod and slander per quod, exists when statements and material are defamatory through interpretation or innuendo.
Specifically, Ohio defines libel per quod and slander per quod as a statement which harbors at least one “innocent meaning that may become defamatory through interpretation and innuendo.” Wilson v. Harvey, 164 Ohio App.3d 278, 286 (2005).
Unlike defamation per se, which presumes damages and doesn’t require a plaintiff to prove damage, defamation per quod requires plaintiffs prove special damages.
For example, a supervisor’s statements that the plaintiff had “psychiatric problems”, “depression”, and a “sad” mental state, provided sufficient extrinsic evidence to support a per quod defamation claim by insinuating the plaintiff resigned from their position due to associated mental problems. Kanjuka v. MetroHealth Med. Ctr., 151 Ohio App. 3d 183 (2002).
To learn more about the damages associated with defamation per se and defamation per quod, please see Section 5: Damages.
Important Defamation Requirements & Formalities
Before bringing a defamation claim in Ohio, there are certain procedural requirements and formalities to that are important to familiarize yourself with.
Does Ohio Have Jurisdiction Over Out-of-State Defendants?
Ohio courts have jurisdiction over defamation of character claims involving out-of-state defendants :
- Who post material online that multiple Ohio residents view;
- That defames a plaintiff with Ohio domicile; and
- Such domicile was known by the defendant. Kauffman Racing Equip. v. Roberts, 126 Ohio St.3d 81 (2010).
In the court’s conclusion they state, “We decline to allow a nonresident defendant to take advantage of the conveniences of technology affords and simultaneously be shielded from the consequences of his intentionally tortious conduct.”
Just because an online defamer lives out of state, doesn’t mean they are immune from a lawsuit in your state.
Defamation Law Fact: The term ‘jurisdiction’ refers to the authority and scope of a legal body (court) to make legal decisions and judgments. In the U.S., jurisdiction is divided into three types; (1) subject matter jurisdiction, and (2) jurisdiction over the person, and (3) territorial jurisdiction.
In Which Venue Can Defamation Plaintiffs Sue a Defendant (Where Can I Sue)?
Generally, plaintiffs may sue defamation defendants in any county:
- Where any defendant resides,
- Where any defendant conducts business,
- Where any defendant conducted the activity that gave rise to the claim (ex. The physical location of the defendant when they posted defamatory reviews or information online), or
- Where the plaintiff resides or conducts business, if the defendant resides, conducts business, and conducted the activity that gave rise to the claim in a different state. Ohio Civ. R. 3 (B).
Here is an easy-to-follow flow chart to help you understand the venue where you can sue a defamation defendant.
Does Ohio Have a Statute of Limitations For Defamation Claims?
Statute of limitation laws are laws requiring plaintiffs to initiate legal proceedings within a specified period of time. Should the time limit for a claim expire, claims can no longer be filed and will be dismissed.
Ohio’s defamation statute of limitations duration
In Ohio, plaintiffs are required to bring an action for libel or slander “within one year after the cause of action accrued.”
Generally, a defamation of character cause of action “accrues” on the date the plaintiff first discovers the injury. However, determining when the cause of action accrues (arises) in Ohio can be a tricky matter because Ohio courts have historically followed the “Single Publication Rule,” also known as the first publication rule, which notably differs from the general cause of action accrual view.
Single publication rule
Although yet to be adopted or rejected by the Ohio Supreme Court, lower Ohio courts have staunchly followed the single publication rule, a legal principle designed to outline the cause of action accrual date and statute of limitations for libel claims.
Under the single publication rule, the statute of limitations for a libel claim accrues upon “the first publication of the matter complained of,” also known as the date the defamatory material was published and distributed to its intended audience. Guccione v. Hustler Magazine, 64 Ohio Misc. 59, 60 (1978).
This differs significantly from the general view of cause of action accrual, as the plaintiff is not required to have knowledge of the libelous statement or publication.
Additionally, injured parties may bring a libel action against a party who republishes or repeats libelous statements and may also hold the original publisher liable for the third parties’ publication of libel. Theiss v. Scherer, C.A.6 1968), 396 F.2d 646.
Does republished defamatory information give rise to a new cause of action accrual date?
As of February, 2018, such issue has yet to be addressed by Ohio courts. However, as long as a publication constitutes a “republication,” and does not fall within the scope of the single publication rule, it is likely to constitute a new action, with a new accrual date.
The future of the single publication rule in Ohio
Ohio’s enforcement of the single publication rule is not set in stone. In a 2011 case, T.S. v. Plain Dealer, an Ohio court left the door open for potential future exceptions to the single publication rule. The court declared the particular facts of the case created a situation lacking “valid basis” to depart from the from the rule, as the case centered around a republished article that was only linked to one particular site.
In the court’s reasoning, they found:
- “There were no alterations made to the article,”
- “[the article] was not singled out for republication,” and
- “The material was removed upon plaintiff’s complaint to [the websites where the article was republished].” Id.
So, what does this mean?
The particular facts of T.S. were not sufficient or distinctive enough to depart from the baseline single publication rule. But, future cases boasting different facts could possibly give rise to a departure from it.
Defamation Removal Tip: Negative and defamatory search results can happen to anybody. Here are a few free, easy tips to suppress negative search results and minimize your negative digital footprint. (1) Create and optimize positive online content (combating negative keywords), (2) Make your social media privacy settings public, and frequently post content, (3) Comment publicly on popular news articles, forums, and other platforms, and (4) Link between your various online accounts.
Ohio vs. other states
How does Ohio compare to other states? Generally, most states have a one to two year statute of limitations for defamation claims. Here’s a list of just a few other state’s defamation statutes of limitations.
|California||One (1) year|
|New York||One (1) year|
|Florida||Two (2) years|
|South Carolina||Two (2) years|
|New Hampshire||Three (3) years|
|Massachusetts||Three (3) years|
To check out a comprehensive state-by-state statute of limitations guide for defamation of character claims, you can read up more on it here.
Ohio statute of limitations statutory exceptions
Additionally, Ohio has four notable statutory exceptions to their one year statute of limitations for defamation actions.
- Legal age: If the plaintiff is a minor when they are defamed, the statute of limitations does not begin to run and is tolled (delayed) until the plaintiff’s eighteenth (18th) birthday.
- Unsound mind: If the plaintiff is “of unsound mind” when they are defamed, the statute of limitations does not begin to run and is tolled until “disability is removed.” An unsound mind indicates a plaintiff is incapable of managing himself, and includes lunacy and insanity.
- Joint & inseparable interests: If a plaintiff’s interests are “joint and inseparable” from other plaintiffs who fall in either of the two above categories, the statute of limitations does not begin to run and is tolled until the statute of limitations begins to run for all plaintiffs to the “joint and inseparable” cause.
- Incarceration: The statute of limitations period is not tolled (delayed) while a plaintiff is incarcerated. Plaintiffs in prison don’t receive extensions or special considerations for bringing their defamation claim as imprisonment is “not a legal disability for purposes of statute of limitations.” Reed v. Jagnow, 2013-Ohio-2546 (7th Dist. Mahoning 2013).
Defamation Law Fact: Online defamation and cyberbullying doesn’t discriminate against age. According to CyberBullying.org’s 2016 study on cyberbullying, over 33% of the 5,700 U.S. teens sampled admitted to having been cyberbullied in their lifetime. The report cited Facebook, Instagram, and Snapchat as the most frequented of social media platforms by teens and noted adolescent girls are 6% more likely than adolescent boys to experience cyberbullying in their lifetimes.
The Cleveland-based defamation removal lawyers of Minc Law want to fight for your reputation. If you’re the victim of libel or slander, call or email defamation lawyer Aaron Minc, and his team of defamation removal lawyers.
At Minc Law, we leave no stone unturned and boast a near 100% libel removal rate. We have an extensive history removing defamatory online posts, reviews, ratings, revenge porn, and other harassing material. We know who to contact, and how to contact them in order to remove false online content and hold libelous and slanderous persons liable.
Public Persons vs. Private Persons: Which One Am I?
When approaching a defamation claim, the rights of a private person vs. the rights of a public person differ significantly, so it’s important to understand which category you fall under.
The importance of a plaintiff’s status as a private or public person is deeply rooted in social policy and the balancing of free speech, and was first addressed in the 1964 case of New York Times Co. v. Sullivan. In Sullivan, the Supreme Court ruled in the interest of protecting uninhibited debate of public issues and the First Amendment, requiring two separate burdens of proof be met in order to succeed in a defamation claim:
- Private persons must prove a defendant made or published a false statement with ordinary negligence – failure to exercise such care as a reasonably prudent person would in similar circumstances, and
- Public persons must prove a defendant made or published a false statement with actual malice – knowledge the statement was false or reckless disregard or whether it was false or not.
To read up further on ordinary negligence and actual malice, check out our detailed blog post here.
Ohio’s Four Classifications of Defamation Plaintiffs
Ohio defamation law expands upon the two traditional defamation plaintiffs, private and public persons, and widens the scope to four types;
- Private persons,
- Public officials,
- Public figures, and
- Limited-purpose public figures.
A plaintiffs’ classification as one of the above four persons determines the necessary burden of proof they need to prove in order to successfully recover damages. Fuchs v. Scripps Howard Broad. Co., 170 Ohio App. 3d 679, 691 (2006).
|Ohio’s Four Classifications of Defamation Plaintiffs||Private Persons||Public Officials||Public Figures/ All-Purpose Public Figures (APPFs)||Limited-Purpose Public Figures (LPPFs)|
|Definition||Plaintiffs not described as public officials, public figures, or limited purpose public figures.||Public officials are “government employee(s) or official(s) whose position has such apparent importance that the public has an independent interest in the qualifications and performance of the person who holds it, beyond the general public interest in the qualifications and performance of all government employees.” Id. Scott v. News-Herald, 496 N.E.2d 699, 702 (Ohio 1986).||Public figures are plaintiffs who are in “positions of such pervasive power and influence” that they invite “attention and comment” on all matters public and private. Gertz v. Robert Welch, Inc., 418 US 323, 345 (1972).||Plaintiffs who “have thrust themselves to the forefront of particular controversies in order to influence the resolution of issues involved.”|
|Burden of proof||*Negligence - unless the issue is of public concern (please see below for more information)||*Actual malice - for both public matters and private matters||Actual malice||*Actual malice - but only particular to the controversies to which the LPPF has thrust himself to the forefront.
*Negligence - in all other circumstances (outside the scope of the particular controversies), courts consider LPPFs private figures and need only establish negligence.
|Example||An online service that does not partake in “extensive advertising” that creates a “high public profile” is considered a private figure or person. Worldnet Software Co., 122 Ohio App.3d 499.||A public school superintendent is considered a public official due to the “community’s legitimate interest” in their performance of “public responsibilities.”|
Scott v. News-Herald, 496 N.E.2d 699, 702 (Ohio 1986).
|The owner of a large coal mining and energy company is considered a public figure due to its achievement of national prominence and attention. Murray v. Chagrin Valley Publishing Co.25 N.E.3d 1111, 2014-Ohio-5442.||Businesses that voluntarily seek and obtain government contracts to invest public money may be considered LPPFs. Great Lakes Partners Ltd. v. Plain Dealer Publ’g. Co., Cuyahoga App. No. 91215, 2008-Ohio-6495.|
Defamation Law Fact: In the world of defamation, the United States is generally considered a more defendant-friendly jurisdiction due to the committed upholding of the First Amendment, while European and Commonwealth countries are considered more plaintiff-friendly.
Issues of Public v. Private Concern
Depending on the subject matter of the false and defamatory statements at issue, private individuals may sometimes have to prove more than mere negligence in order to recover damages.
If a private individual is defamed by defamatory speech regarded as a matter of “public concern,” then the defamed individual cannot recover damages unless he proves malice or actual injury. Woods v. Capital Univ., 2009-Ohio-5672 (10th Dist. Franklin 2009).
So, what exactly is classified as a matter of public concern?
In Ohio, the subject matter will be considered “of public concern” where it is:
- “Something that is a subject of legitimate news interest; that is, a subject of general interest and of value and concern to the public at the time of publication.” San Diego v. Roe, 543 U.S. 77, 83-84 (2004). And,
- Encourages “unrestricted and hearty debate” in the community. Scott v. News-Herald, 25 Ohio St. 3d 243, 255 (1986).
Below are two examples from two early 2000s Ohio cases illustrating private persons accused of subject matter considered to be of public concern.
- In Gilbert v. WNIR 100FM, a radio station defamatorily accused a plaintiff couple of being involved in the murder of a prominent Akron physician. Because “murder is generally a matter of public concern,” the plaintiff couple was required to prove the defamation with committed with “malice level culpability.” Gilbert v. WNIR 100FM, 142 Ohio App.3d 725, 744-45 (2001).
- A university provost’s false statements concerning the reasons for termination of a vice-provost did not constitute an issue of public concern because the vice-provost’s employment was not a matter of “particular public notoriety or concern”, despite the community’s general interest of educational matters at Ohio State. Knowles v. Ohio State Univ., 2005-Ohio-3330, aff’d, 2006-Ohio-6732 (2006).
Common Defenses to Defamation
Even when a person makes or publishes a defamatory statement, there are certain circumstances and defenses in which such statements are authorized by law and they will not be held liable for defamation.
Below is a list of some of the most common and notable defenses to the tort of defamation in Ohio.
- Incremental harm doctrine
Let’s start first with the defense of ‘Opinion,” which is recognized in nearly every U.S. jurisdiction.
Ohio’s Constitution takes a broader stance towards protection of opinion than the U.S. Constitution, allowing opinion to be raised as an affirmative defense and as a complete defense to defamation.
Specifically, Ohio courts have “expressly declined to follow” the US Supreme Court’s ruling in Milkovich v. Lorain Journal Co, a landmark libel case holding there was no special constitutional privilege for opinion, ultimately, clarifying and limiting the extent to which opinion could be expressed. Wampler v. Higgins, 93 Ohio St.3d 111 (2001); accord Kilcoyne v. Plain Dealer Publ’g Co., 112 Ohio App.3d 229 (1996).
So, how does Ohio define opinion and determine whether a statement is opinion or fact?
Ohio’s test for opinion
Ohio courts apply a “totality of the circumstances” approach to determine whether a statement is opinion or fact. Scott v. News-Herald, 25 Ohio St.3d 243 (1986). Specifically, they look to the following four (4) factors to determine whether a statement is opinion or fact:
- The specific language used;
- Whether the statement in question is verifiable;
- The general context of the statement; and
- The broader context in which the statement appeared. Id
Courts approach their analysis of the four prongs from the perspective of a “reasonable reader,” choosing not to isolate a specific statement if – only by doing so – such isolation causes a statement of opinion to appear factual. McKimm v. Ohio Election Comm’n, 89 Ohio St.3d 139 (2000). DeVito v. Gollinger, 133 Ohio App.3d 51, 55 (1999).
Further widening the scope and applicability of opinion as a defense is the court’s acknowledgment that the above four pronged test does not constitute a “bright-line test, but, rather, a fluid standard in which…each of the four factors should be addressed, but the weight given to any one will conceivably vary depending on the circumstances presented.” Savage v. Ohio State Univ., 2013-Ohio-4856 (Ct. Cl. 2013).
Simply put, the opinion vs. fact test set out in Scott is not a rigid one, but open to interpretation and dependent on the circumstances.
To read up further on whether an opinion can be defamatory, check out our detailed blog post here.
5 Examples of Opinion (and Fact) in Ohio
- Online scam & pyramid scheme: An Ohio Court found that defendant’s statements that plaintiff’s website was an “online scam,” a “pyramid scheme,” failed to help customers, and failed to respond to customer complaints were defamatory for the purposes of defeating a motion to dismiss; but the “scam” and “scheme” related comments were protected opinion and supported defendant’s affirmative defense. Worldnet Software Co. v. Gannett Satellite Info. Network, Inc., 122 Ohio App.3d 499, 509 (1st Dist.1997).
- Political bribery: A Court found an “implied assertion of fact” that a politician accepted bribes after viewing political campaign literature depicting a hand extending money toward a reader under a table. McKimm, 89 Ohio St.3d 139.
- Surgeon & hospital business practices: A surgeon’s “defamatory” statements on his personal website, accusing a hospital of engaging in anticompetitive business practices and unlawfully failing to maintain an open medical staff, were NOT actionable defamatory statements of fact, but protected opinions due to the ordinary internet “surfers” attunement to hyperbole and exaggeration. Additionally, the court cited the surgeon’s statements alleging the hospital acted “unprofessionally and unconscionably” and that it entered into a new agreement “for economic and political reasons without regard for patient care” to be “loosely definable or variously interpretable” and unsupporting of a defamation claim. Toledo Heart Surgeons, Inc. v. Toledo Hosp., 154 Ohio App. 3d 694, 700 (2003).
- An unethical & illegal scheme: In a context of a press conference, statements that certain actions “were part of an unethical and illegal scheme” was determined to be opinion. Cooke v. United Dairy Farmers, Inc., Franklin App. No. 04AP-817 (2005).
- The reasonable listener: Statements that a recently suspended soccer player from the league was a “criminal” who had “stolen lots of money from us” did not constitute an assertion of fact because a reasonable listener would not understand such assertions to be fact, especially in the context of a suspension. Biesiada v. Gyekenyesi, 69 Ohio Misc.2d 14 (1994).
Are there any exceptions to the defense of opinion in Ohio?
The Ohio Supreme Court has opined that “the expression of opinion becomes as damaging as assertion of fact” if a speaker “represents that he has private, first-hand knowledge which substantiates the opinions he expressed[.]” Sturdevant v. Likley, 2013-Ohio-987 (9th Dist. Medina 2013) quoting Scott at 251, 496 N.E.2d 699.
If the speaker of the statement in dispute made such statement and told the listener they had actual, first-hand substantiating knowledge, the defendant will not be able to rely on opinion as a defense. But why? Perceived first-hand knowledge will make the listener more likely to believe the rumor or opinion to be fact.
Exception to opinion example
A statement made in an online video of a public meeting, alleging the plaintiff was rumored to have an affair was deemed not to be as damaging as an assertion of fact, but such statement could have been as damaging as an assertion of fact if those in (live) attendance believed the speaker possessed actual knowledge of the affair. Id. Sturdevant.
Another common defense to a defamation claim is the defense of truth. In Ohio, truth is a complete defense to defamation when pleaded and proved by the defendant. Ohio Rev. Code Ann. § 2739.02.
In order to succeed in the defense of truth, the defendant must show that the defamatory statement in question is substantially true. National Med. Serv. Corp. v. E.W. Scripps Co., 61 Ohio App.3d 752 (1989).
But, what does “substantially true” actually mean?
Ohio courts recognize a statement to be substantially true when any false aspects of the statement fail to pervert the “gist” or “sting” of the statement as a whole. Id. After all, if a statement is true, general democratic principles of free speech govern a person’s right to openly speak about such.
Three examples of substantially true statements
To better familiarize yourself with what Ohio courts have found to constitute “substantial truth,” let’s take a look at three examples.
- A court found a statement identifying a non-registered sex offender as a “registered” sex offender was not defamation because it was substantially true. King v. Semi Valley Sound, L.L.C., 2011-Ohio-3567 (9th Dist. Summit 2011).
- A newspaper’s statement reporting on the pending criminal and civil actions at a strip club was deemed to be substantially true when they wrote that one stripper was “charged but not arrested” for criminal prostitution. In reality, the stripper was only subject to a civil nuisance claim that alleged “lewdness, assignation, or prostitution.” Bruss v. Vindicator Printing Co., 109 Ohio App. 3d 396, 400 (1996).
- A statement indicating a defendant had plead guilty to insurance fraud was declared substantially true, even though the defendant had actually plead guilty to insurance fraud on behalf of the defendant’s corporation. Saferin v. Malrite Communications Group, Inc., Lucas App. No. L-99-1193, unreported (Mar. 24, 2000). (Keep in mind that unreported cases are cases that have not been published, and are generally considered less persuasive than reported decisions).
Privilege is the special legal right, entitlement, or immunity allowing persons to make certain statements without fear of legal repercussion or lawsuit. In defamation law, privilege grants persons the right to make defamatory or false statements in certain circumstances for the purpose of furthering social and legal policy, and debate.
Should a defendant successfully prove they were legally entitled to make certain defamatory statements, they will not be held liable for the statement and the defamation claim against them will effectively be defeated.
In Ohio, privilege can generally be classified into four types:
- Fair Reporting
- Qualified, and
Absolute privilege is the absolute and unqualified right to make a statement at a certain time, even if the statement is defamatory. Absolute privilege is all encompassing, and even applies and protects defendants who made such defamatory statements with actual malice. Generally, absolute privilege is granted in several narrowly defined instances in Ohio:
- Official proceedings: Utterances made during the course of official proceedings by members of local governing bodies are absolutely privileged, if the statements relate to a matter under consideration, discussion or debate. Costanzo v. Gaul, 62 Ohio St.2d 106, 403 (1980). However, several Ohio cases have suggested such absolute privilege may not extend to smaller governing bodies when the court cannot discern the type of legislative function the body was performing at the time of the statement, such as city councils. Floyd v. Thomas, Preble App. No. CA99-07-016, unreported (June 26, 2000). Additionally, in Long v. Brumbaugh, a court found Board of Education member’s statements during an open meeting were NOT absolutely privileged because, although it has a policy making role, the Board is not a legislative body of a sovereign state. Long v. Brumbaugh, Summit App. No. 19755, unreported (May 3, 2000).
- High ranking officials: Official acts of the chief executive officers of a state or nation are absolutely privileged. Bigelow v. Brumley, 138 Ohio St. 574 (1941). However, lower courts in Ohio have found that Bigelow does not suggest an intention by the Ohio Supreme Court to extend absolute privilege to municipal executive officials generally. Marcum v. Rice, Franklin App. No. 98AP-717,-718,-719,-721, unreported (July 20, 1999).
- Judicial proceedings: Defamatory statements made in the context of judicial proceedings are absolutely privileged. Surace v. Wuliger, 25 Ohio St.3d 229, 495 (1986).
- Government criticism: Government criticism is absolutely privileged, unless the criticism rises to the level of sedition – inciting a rebellion against the state or nation. Grafton v. American Broad. Co., 70 Ohio App.2d 205, 435 (1980).
Statements not protected by absolute privilege may however be protected by qualified privilege. Qualified privilege, also known as common interest privilege, permits persons in positions of authority and trust to communicate or relay certain statements, even defamatory ones.
Typically, the party making the statement has a moral, legal, or social duty to make such statement known to the recipient, and the recipient has a corresponding interest in hearing it.
In Ohio, qualified privilege protects statements made when a reasonable person would be expected to speak his or her mind. Gruenspen v. Seitz, 124 Ohio App.3d 197 (1997). For statements to rely on the defense of qualified privilege, they must be:
- Made in good faith;
- Upholding an interest;
- Limited in scope and purpose;
- Made in a proper occasion; and
- Made in a proper manner and to proper parties only.
How is qualified privilege different to absolute privilege?
As opposed to absolute privilege, which protects speakers of defamatory statements in certain situations, even when acting with actual malice, qualified privilege “may be defeated” if a defamatory statement is made with actual malice. Id.
To understand qualified privilege in Ohio further, here are six popular cases and statements where defendants were protected by qualified privilege and not liable for defamation.
Six Ohio Qualified Privilege Examples:
- Child abuse: The communication by day care administrators to a state agency concerning suspected child abuse was protected by qualified privilege. Lail v. Madisonville Child Care Project, Inc., 55 Ohio App.3d 37 (1989).
- Overcharging clients: A company that matched movers with corporate clients was protected by qualified privilege after advising clients that a moving company was likely overcharging clients. Mills Van Lines, Inc. v. Prudential Real Estate & Relocation Servs., 2011-Ohio-3833 (2011).
- College professor: A letter written about a college professor to an academic provost stating the professor should not be retained as a future instructor due to past and recent unethical, questionable, and unprofessional conduct, was deemed to be qualifiedly privileged. Creps v. Waltz, 5 Ohio App.3d 213 (1982).
- Fugitive misidentification: A nonprofit organization devoted to reducing crime that released information falsely identifying a plaintiff as a fugitive was protected by qualified privilege. Miller v. Central Ohio Crime Stopper, Inc., Franklin App. No. 07 AP-669, 2008-Ohio-669 (2008).
- Club business: Fraternal and social organizations and their members generally are protected by qualified privilege in discussing club business, such as disciplinary matters, with other club members. McPeek v. Leetonia Italian-American Club, 174 Ohio App.3d 380 (2007).
- Job performance: Former employers who communicate with employers asking about a plaintiff’s past job performance are protected by qualified privilege. Jahahn v. Wolf, 2013-Ohio-2660 (10th Dist. Franklin).
Fair report privilege protects parties who publish reports by official, judicial, or legislative proceedings. The general public should accept official reports and public documents as factual and accurate, and it would be against public policy to punish persons who relied on such official information in good faith.
In Ohio, such official, judicial, and legislative reports cannot form the base of a defamation action if the report:
- “Deals with a matter of public concern, and is
- ‘A fair and substantially accurate account’ of the official record or government information.”
Sullins v. Raycom Media, Inc., 2013-Ohio-3530 (2013) reconsideration denied, 2013-Ohio-4697, and appeal not allowed, 137 Ohio St. 3d 1473 (2014) reconsideration denied, 138 Ohio St. 3d 1452 (2014), quoting Dinkel v. Lincoln Publishing (Ohio), Inc., 93 Ohio App.3d 344, 346 (12th Dist.1994);
But, how do Ohio courts determine whether the report is “substantially accurate?”
In a 1988 case, Oney v. Allen, the court found, “A publication is ‘substantially accurate’ if it ‘conveys the essence of the official record to the ordinary reader, without misleading the reader by inclusion of inaccurate extra record information or the exclusion of relevant information in the record.’ Oney v. Allen, 39 Ohio St.3d 103 (1988).
Post-Oney, courts have stated it is not the inclusion of additional words that renders a report inaccurate, but whether those additional words themself are inaccurate and irrelevant, thus rendering the report “substantially inaccurate.”
The Ohio Revised Code has reinforced the above protections, and broadly listed privileged reports to include:
- Legislative & executive proceedings: Legislative and executive proceedings or synposes of documents presented, filed, or issued in such proceedings; and
- Fair & impartial reports: Publications of fair and impartial reports of indictments, warrants, arrests, court filings or the contents thereof or to publish, upon request, the subsequent determination of such suit or action.
Ohio has codified certain statements in their books as privileged and are thus subject to punishment or penalty prescribed by that statute. Below are several statements protected by statutory privilege in Ohio:
- Medical review committees: Deliberations of medical review committees are absolutely privileged. Ohio R.C. 2305.25-2305.251.
- Ohio Department of Insurance: Reports to the Ohio Department of Insurance are absolutely privileged. Ohio R.C. 3999.31(B).
- State officers and employees: State officers or employees are immune from defamation liability unless the actions giving rise to the liability were outside the scope of their official responsibilities or employment, or unless the officer or employee acted with malicious purpose, in bad faith, or in a wanton or reckless manner. Ohio R.C. 2743.02. Ohio has found several specific state officers and employees immune from defamation liability, including: a senator who made statements to newspaper reporter (Pollack v. Watts, Fairfield App. No. 98CA74, unreported (Sep. 10, 1999)), a university president who defamed a professor (Okereke v. Cent. State. Univ., Franklin App. No. 00AP-686 (Mar. 29, 2001)), and public school board members and school employees who defamed a teacher (Coleman v. Cleveland Sch. Dist. Bd. Of Educ., Cuyahogoa App. Nos. 84274, 84505, 2004-Ohio-5954 (2004)).
Ohio privilege defense recap
To recap, here’s a quick and easy reference chart to understand the key differences between absolute, qualified, fair report, and statutory privilege.
|Definition||The unqualified legal right to make a statement, even if the statement is defamatory.||The right granted to persons in positions of authority and trust to communicate and relay certain statements, even defamatory ones.||The legal right to publish official reports without fear of defamation action if the statement: (1) deals with a matter of public concern, and (2) is a fair and substantially accurate account.||Certain statements codified by law, protecting and immunizing speakers from defamation liability.|
|Can it be defeated?||No, even if statement is made with actual malice.||Yes, if statement is made with actual malice.||Yes, if statement is made with actual malice.||Varies by statement.|
|Examples||Official proceedings, high ranking officials, judicial proceedings, and government criticism.||Club organizations and members, former and present employers, and professors and provosts.||Reports on legislative & executive proceedings, and fair & impartial reports of indictments, warrants, arrests and court filings.||Medical review committees, the Ohio Department of Insurance, and state officers and employees.|
Incremental Harm Doctrine
The incremental harm doctrine is a rarely-used legal doctrine in libel and defamation of character litigation that allows defendants to escape liability for harm inflicted through alleged defamatory statements, if and when such harm fails to exceed the harm caused by the defendants non-actionable statements in the same publication.
A core element of defamation is harm and damage to a person’s reputation. But, what happens when there is no significant harm or damage exceeding the scope of the rest of the publication?
If a defendant can prove the publication and statement(s) would have the same effect on the plaintiff’s reputation had the allegedly defamatory portion been removed, then the plaintiff will not succeed in their defamation action.
For example, in Frigo v. UAW Local, a plaintiff brought a defamation action against a shop chairman for “willfully and maliciously” providing false news to The Columbus Dispatch regarding his job history and personality. The plaintiff claimed the information was incorrect, and injured his reputation.
The court analyzed the statements made to The Columbus Dispatch, and found the defendant’s statements were not defamatory, as in addition to the statements about the plaintiff’s work history, the article also included information stating the plaintiff “planned to fire grenades…,kill security guards and police officers and distributed documents about producing rockets and poison gas.” Compared to this information, statements made about the plaintiff’s work history resulted in mere nominal, incremental harm, and were thus, not defamatory.
Brite Metal Treating, Inc. v. Schuler, Cuyahoga App. No. 62360, unreported, (May 13, 1993); Ferreri v. Plain Dealer Publishing Co., 142 Ohio App.3d 629, 756 (2001); Frigo v. UAW Local 549, Richland App. No. 04 CA 20, 2005-Ohio-3981 (2005).
Defamation Tip: The party who makes or publishes defamatory information and comments is commonly referred to as a “defamer,” “libeler,” “slanderer,” and “famacide.”
If you’ve been the target of online defamation, libel, or slander, the Ohio-based Internet Defamation Removal Attorneys of Minc, LLC will fight and work strategically to secure its permanent removal and hold malicious online posters liable. At Minc Law, we have a storied history of libel removal and take-downs, with a nearly 100% success rate and all for a flat, reasonable fee.
To schedule a free and confidential no-obligation initial consultation, call Aaron and his team of reputation repair lawyers at (216) 373-7706, or schedule a meeting online.
The fifth element of defamation claims, damages, requires a plaintiff must have suffered damage or harm to their reputation. Such harm caused to a plaintiff’s reputation is typically quantified as damages, an award, usually monetary, to act as compensation for the plaintiff’s loss or injury.
In defamation cases, damages can be divided into several categories, so let’s take a look at four types of damages in Ohio, and what a plaintiff must plead and prove in order to recover them.
- Special damages,
- Actual damages,
- Punitive damages, and
- Presumed damages.
Simply put, presumed damages are those which do not require a plaintiff to prove harm or injury and are designed to assist plaintiffs in recovering damages by preventing defendants from contesting their assertion of damages.
In Ohio, all but one court presumes damages for statements that are defamatory per se. Cramton v. Brock, Clinton App. No. CA91-05-011, unreported, (Mar. 23, 1992). The Montgomery Appellate Court has held – at least once- that defamation per se CAN be rebutted with evidence of no reputational harm. Wilson v. Wilson, Montgomery App. No. 21443, 2007-Ohio-178 (2007).
In Wilson v. Wilson, the court found accusations that a husband was a pedophile and viewed child pornography constituted defamation per se. Ultimately, the plaintiff husband failed to prove damages, and summary judgment was awarded to the wife because no evidence showed that anyone believed the statements. Id.
As a refresher, defamation per quod exists when a statement harbors at least one “innocent meaning that may become defamatory through interpretation and innuendo.” Defamation per quod is not apparent, and typically requires supporting evidence to prove its injurious nature. (Wilson v. Harvey).
Unlike defamation per se, which presumes damages, defamation per quod actions require plaintiffs to plead and prove that a defendant’s statement caused special damage to them. Northeast Ohio Elite Gymnastics Training Ctr., Inc. v. Osborne, 183 Ohio App.3d 104,109 (2009)
So, how does a plaintiff to a defamation action prove special damage or special harm?
Plaintiffs to a defamation action can prove special damage or special harm to their reputation in numerous ways, including, but not limited to:
- Showing an adverse affect in society by people “other than the defamer or the one defamed.” Id.
- Providing evidence that third parties threatened the plaintiff with violence. Id.
- Providing evidence that third parties harbored ill will towards the plaintiff. Id.
- Showing the plaintiff was publicly ridiculed. Id.
- Showing the plaintiff lost “particular contracts, sales, customers, patients, or clients” as a direct result of defendant’s statements. Moore v. P.W. Publ’g Co., Inc., 3 Ohio St.2d 183, 190 (1965), cert. denied, 382 U.S. 978 (1966).
- Showing the plaintiff lost some percentage of their “total amount of overall happiness,” quantified as a dollar figure by assigning a daily value to the plaintiff’s state of mind. (Kanjuka).
It’s important to remember that special damages are associated with defamation per quod, while presumed damages are associated with defamation per se.
Borderline Example of Defamation Per Quod Special Damages
A defendant who posted flyers around the Case Western Reserve University’s campus with the title, “In Search of a Male Companion,” claiming the plaintiff was a homosexual, was NOT considered defamation per se because “…being a homosexual is not a crime, nor is it a disease. Additionally, being a homosexual would not tend to injure a person in his trade or occupation.”
However, the court found that publicizing that someone is a homosexual may be defamation per quod if the plaintiff proves special harm, such as showing that the plaintiff was:
- “Threatened with violence, or
- Ill-will, or
- That he was publicly ridiculed” as a result of the false statements.
In Wilson, the court found evidence against the plaintiff’s special harm claim due to the plaintiff only finding offence in the false nature of the statements, and not in being an accused homosexual.
Further, the court found that the plaintiff was NOT publicly ridiculed, because the would-be-ridicule the plaintiff received was based on the prank’s humor, not based on a mistaken belief that the plaintiff was actually a homosexual.
Finally, the court found evidence that the plaintiff stayed in school and began dating a girl within one week of the flyers posting, proving a lack of special harm to the plaintiff. The appellate court upheld the lower court’s directed verdict in favor of the defendant. (Wilson v. Harvey).
Actual damages, also called “compensatory damages”, are a monetary award for plaintiff’s who experienced actual (real) harm, loss, or injury due to the libelous or slanderous statements and defamation.
In an Ohio defamation action, to recover actual damages, plaintiffs must plead and prove actual injury. Actual injury may include not only out-of-pocket expenses (case costs), but also:
- Impairment of reputation,
- Emotional distress,
- Personal humiliation,
- Mental anguish, and
The above list identifies just some of the possible injuries a plaintiff may experience, and is not an exhaustive list. Defamation of character has the potential to affect plaintiffs not only mentally and physically, but financially as well.
Thomas H. Maloney & Sons, Inc. v. E.W. Scripps Co., 43 Ohio App.2d 105 (1974), cert. denied, 423 U.S. 883 (1975).
To recover damages for emotional distress in Ohio (i.e. impairment of reputation, personal humiliation, mental anguish, and suffering), expert evidence proving serious emotional injury “is necessary in all but the most extraordinary cases.” Shariff v. Rahman, 152 Ohio App.3d 210 (2003).
Lost Income & Loss of Earning Capacity
When an Ohio plaintiff establishes a nexus (connection) between the damages and the defamation, they may recover damages for lost income and loss of earning capacity. Should a plaintiff establish such connection, the jury will have a wide discretion in determining the defamation damages. Kluss v. Alcan Aluminum Corp., 106 Ohio App.3d 528 (1995).
Some examples of lost income and earning capacity include:
- Loss of job, wages, or salary,
- Loss of current clients, partnerships, and customers,
- Loss of employment benefits (vacation days, pension, 401(k) contributions, and health insurance)
- Loss of other health and mental benefits, and
- Inability to find comparable new or future employment.
In regards to lost employment opportunities, an Ohio court acknowledged in Woods v. Capital Univ., that “[a] lost employment opportunity constitutes actual injury.” The fact that Google search results displayed assertions and statements that the aggrieved party (plaintiff) was fired from his job for “finance and job performance reasons” failed to constitute actual injury in a defamation claim because such evidence “offers only speculation” that the aggrieved party lost employment opportunities. Woods v. Capital Univ., 2009-Ohio-5672 (10th Dist. Franklin 2009).
Also known as exemplary damages, punitive damages are punishment damages awarded to plaintiffs in order to punish defendants for their defamatory behavior.
For an Ohio plaintiff to recover punitive damages, they must not only show “actual malice”, but also show common-law malice, which means:
- The defendant made the libelous or slanderous statement “with knowledge that [the statement] was false or with reckless disregard of whether [the statement] was false or not.” Burns v. Rice, 157 Ohio App. 3d 620, 631 (2004); and
- The defendant made the defamatory statement with ill-will, hatred, a spirit of revenge, or a conscious disregard for the rights and safety of other persons. Preston, 32 Ohio St. 3d 334.
Are there any exceptions to Ohio’s stance on punitive damages?
Though notably against the weight of Ohio authority on punitive damages, the court in Gilbert v. WNIR 100 FM did not rule out the possibility for punitive damages in cases where a defendant’s fault failed to rise to the level of malice, stating: “[I]f the plaintiff is a private individual and the matter is not of public concern, the plaintiff need not show actual malice to recover punitive damages.”
In Gilbert, the defendant radio station accuse the plaintiff of being involved in a local murder. Ultimately, the court decided the case on separate grounds, but is significant due to its discussion of non-malice-based punitive recovery. Gilbert v. WNIR 100 FM, 142 Ohio App. 3d 725, 744 (2001).
For a quick comparison of defamation damages, their definitions, and the types of actions they are associated with, please see the table below.
|Presumed Damages||Special Damages||Actual Damages||Punitive Damages|
|Definition||Damages which do not require a plaintiff to prove harm or injury.||Damages which require a plaintiff to prove a quantifiable loss.||Damages which cause real harm, loss, or injury to a plaintiff.||Damages punishing a defendant for libelous and slanderous behavior.|
|How to Prove||Presumed. Associated with defamation per se and does not require proving harm and damage.||Requires extrinsic, supporting evidence to prove special harm and damage.||Must plead and prove actual harm, loss, or injury.||Requires proof of not only “actual malice”, but “common-law malice”.|
Additional Important Defamation Nuances in Ohio
Ohio has several important defamation nuances not covered in the above sections that are important to be aware of.
Legal protections for anonymous speech in Ohio
Uncovering anonymous online posters and users can make confronting online defamation an overwhelming and stressful process. There is however good news.
Although there are no published Ohio cases providing courts guidance on the instruction of websites to reveal anonymous user identities, in the 2012 Steubenville High School rape case of Saltsman v. Goddard, an Ohio trial court plaintiff prevailed in asking the court to apply a New Jersey Superior Court’s identity disclosure guidelines to their facts. The New Jersey case of Dendrite Int’l Inc. V. Doe laid out a five (5) prong test before permitting discovery of anonymous internet users, requiring the plaintiff to:
- Attempt to notify defendants that their identities are being sought and explain how to present a defense;
- Quote verbatim, the exact statements of the defamatory speech;
- Allege all elements of the cause of actions;
- Present evidence supporting the claim of violation; and
- Show that, on balance and in context, the plaintiff’s right to identify the speaker in order to rectify alleged wrongs outweighs the First Amendment right to anonymous and free speech. Dendrite Int’l Inc. V. Doe No. 3, 775 A.2d 756 (N.J. Super. A.D. 2001).
Saltsman v. Goddard involved an anonymous defendant blogger, who accused the teenage plaintiff of being a rapist with a previous criminal investigation that failed to lead to his indictment.
The case hinged on the 5th prong of the Dendrite disclosure test, and the plaintiff, Cody Saltsman, argued that the First Amendment did not protect false assertions of fact. Additionally, he highlighted evidence of his non-indictment to support his claim.
Ultimately, the court found the plaintiff’s argument convincing and issued a discovery order.
Besides Saltsman, only one other published Ohio cases touches on semi-anonymous speech. However, it’s unrelated to the Internet.
Disciplinary Counsel v. Lehmkuhl detailed the public reprimand of an attorney who initiated a defamation suit against a defendant whose first name he couldn’t remember.Similar to Dendrite and Saltsman, the Ohio court expected the plaintiff to “adequately investigat[e]” the defendant’s identity before commencing suit. The court found the plaintiff failed to adequately investigate the defendant’s identity after only asking two acquaintances of the defendant and being told the first name Amanda “sounded right.” Id. Disciplinary Counsel v. Lehmkuhl 137 Ohio St. 71, 74 (2013).
Aiding and abetting
Any person who “requests, procures, or aids or abets” the publication of defamatory material may also be held liable for defamation of character. Cooke v. United Dairy Farmers, Franklin App. No. 05AP-1307 (2006).
Simply put, a person who assists another in the committing the tort of defamation will be liable to the same extent as the defamer.
Of and concerning standard
Ohio boasts an arguably strict “of and concerning” standard. If the statement isn’t directly about the plaintiff, they won’t likely be successful in their defamation claim.
For example, statements about a person’s business may not support a defamation action of its owner. Worldnet Software Co., 122 Ohio App.3d 499.
Neutral report privilege
Neutral report privilege is a defense to libel and defamation lawsuits involving the media and their republishing of defamatory material. Sometimes, in the course of publishing, news and media outlets republish defamatory statements, and might otherwise be liable for the republishing. The neutral report privilege protects news and media outlets who echo and report on the accusations in an unbiased manner.
However, Ohio rejects this defense in Young v. Morning Journal, in cases relevant information is excluded, and “inaccurate extra-record information” is included. They state they have never recognized the “neutral reportage” doctrine and have not done so since. Young v. Morning Journal, 76 Ohio St.3d 627 (1996).
Food libel & disparagement laws
Referred to as food libel, food disparagement, and veggie libel laws, Ohio and twelve (12) other U.S. states have laws in their books protecting food producers, manufacturers, and processors from persons or groups who make libelous and disparaging statements about their perishable food products.
For instance, food libel laws would be used in a case where a defendant alleges such perishable food products are not safe for human consumption, and allow a plaintiff to recover up to three (3) times the regular amount of compensatory damages.
Discovery & Summary Judgment
Some Ohio courts have denied additional time for discovery, the process of obtaining evidence, and granted summary judgment, a judgment without trial, in favor of the defendant in a defamation action. Westcott v. Associated Estates Realty Corp., 2004-Ohio-6183 (2004).
Frequently Asked Questions
Q. How has the Internet affected free speech?
A. In general, no court has officially recognized arguments that internet speech should be entitled to higher protections than any other type of speech. However, in the specific context of the defense of “opinion,” courts may tend to favor finding for the defendant due to the common nature of internet users to engage in hyperbole and exaggeration.
“[A]n ordinary [internet] ‘surfer’ is attuned (accustomed) to the blend of hyperbole and exaggeration in the expression of opinion that is contained on the Internet.” Toledo Heart Surgeons, Inc. v. Toledo Hosp., 2003-Ohio-5172. (See “The Defense of Opinion” section for more.)
Q. Can I bring a defamation lawsuit against a party who is out-of-state?
A. Yes. Ohio residents may bring a tort of defamation lawsuit against a party who is out-of-state when an out-of-state defendant:
- Posts material online that multiple Ohio residents view;
- The material defames a plaintiff domiciled in Ohio, and
- The defendant knew of the plaintiff’s domicile.
Please see Section 2 for more detail.
Q. Can I retract, correct, or clarify a defamatory statement before litigation?
A. Although defendants may retract defamatory material and statements prior to litigation, such retraction won’t bar any plaintiff action. However, defendants who retract defamatory material and statements may argue that they mitigated a plaintiff’s possible damages. Id. State v. Fleming, 127 Ohio St. 8 (1933).
After a defendant retracts defamatory material, a plaintiff may not use evidence of the defendant’s retraction to support a claim that the defendant acted with malice. Dupler v. Mansfield Journal Co. 64 Ohio St.2d 116, 413 (1980). Cert. denied, 452 U.S. 962 (1981).
Q. Are newspapers required to correct previously made & published false statements?
A. Yes. Ohio R.C. 2739.13 requires newspapers to correct false statements previously made, upon the demand of the person affected, in certain circumstances. Additionally, section 2739.16 prohibits newspapers from refusing to correct false information, and section 2739.99(c) imposes a fine of not more than $500 for failing or refusing to correct false statements.
- If you are curious about the procedures and guidelines for how a newspaper should correct false statements, check out section 2739.14.
- Under section 2739.14, newspapers are required to reprint the article within 48 hours of notice, in an identical manner to the first publication with – among other requirements – “the same color of ink, from like type, with headlines of equal prominence, occupying a like space in the same portion of the newspaper…”
Although the Ohio Supreme Court has never determined the constitutionality of the above correction statutes, these statutes are likely unconstitutional (if challenged) in light of Miami Herald v. Tornillo. Miami Herald, a 1974 Florida case, held Florida’s “right to reply” statute violated the First Amendment’s freedom of the press, and was an “intrusion into the function of editors.”
Such ruling hints at at judicial reluctance to require newspapers to publish criticisms and public answers. Miami Herald v. Tornillo, 418 U.S. 241 (1974).
Q. Does Ohio have criminal defamation laws?
A. As of March, 2018, Ohio does not have any criminal libel and slander laws in their books. In 1974, the Ohio legislature repealed Ohio’s Criminal Libel Statute. Currently, twenty-four states and the U.S. Virgin Islands have criminal defamation statutes. For a state-by-state guide of criminal defamation statutes and penalties, check out a comprehensive table here.
Q. Does Ohio have Anti-SLAPP laws?
A. No. Ohio does not have any law that resembles an Anti-SLAPP statute. A SLAPP lawsuit, also known as a strategic lawsuit against public participation is a meritless lawsuit filed against a party in order to censor, scare, burden, or intimidate them.
Although Ohio does not have any Anti-SLAPP laws to protect innocent parties from malicious SLAPP suits, Ohio defendants may file an abuse of process tort counterclaim when they feel frivolously prosecuted by defamation claim. Murphy v. Plain Dealer Publ’g Co., 19 Media L. Rep. 1556 (N.D. Ohio 1991).
Q. Will Ohio restrain future publications of anticipated defamatory material?
A. Ohio courts will not issue an order to restrain the future publication of anticipated defamatory material, known as prior restraint, even if the plaintiff’s business interests and reputation are at stake. Dopp v. Doll, 9 Ohio Dec. Reprint 428,13 Wkly. Law Bull. 335 (1885).
Ohio courts will however permit prior restraint if they believe they cannot hear a fair trial without such restraint. Procter & Gamble Co. v. Bankers Trust So., 78 F.3d 219 (1996).
School boards may determine certain statements to be published in a student newspaper are potentially defamatory and may preemptively prohibit publication of the newspaper. Draudt v. Wooster City Sch. Dist. Bd. Of Educ., 246 F. Supp 820 (N.D. Ohio 2003).
Q. What is defamation insurance, and do I need it?
A. Typically, most people carry some form of an insurance policy (ex. homeowners coverage or auto insurance), however, most insurance policies don’t cover defamation claims. Defamation insurance covers libel and slander claims against you or your business and are typically covered under “excess liability,” an insurance policy issued to provide extra coverage beyond primary liability policies.
Unless your profession frequently deals with threats of defamation lawsuits, such as:
- news organizations,
- independent contractors, and
- freelance journalists, then…
You probably don’t need to purchase defamation insurance. To read up on defamation insurance, the primary parties needing it, and what to look out for when purchasing it, check out our comprehensive defamation insurance guide here.
Work With the Ohio Defamation Removal Lawyers of Minc Law Today!
At Minc Law, we know the ins and outs of Ohio defamation law and want to fight to protect your reputation. We’ve handled over 100 libel and slander cases not only in Ohio, but across the U.S. and in 3 countries, and boast a nearly 100% online libel removal success rate. If you’ve been the subject of a false online post, or slanderous statement, reach out today to discuss your options.
When working with us, here’s what you can expect:
- Websites Respond to Minc Law: Aaron and his team of content removal lawyers have removed over 10,000 websites and other pieces of false and damaging content from the Internet and its search results. At Minc Law, we know who to contact, and how to contact them. Additionally, we know that in defamation of character claims time is of the essence, therefore, we will work swiftly and efficiently towards securing a quick and permanent content removal.
- Courtesy & Respect: At Minc, LLC, our goals are your goals. Know that your consultation is confidential, and we are always on your side. Courtesy and respect are principles we strictly adhere to, as we know the defamation removal process can be an overwhelming and stressful time.
- We Will Work With You: After commencing the online removal process, we will stay in constant contact with you, updating you on the details of your case via phone, email, text, or whichever medium is most convenient for you.