§24.3 Conditional Privilege

The Case: McWhorter v. Barre , 132 S.W.3d 354 (Tenn. Ct. App. 2003), perm. appeal denied (Mar. 8, 2004).

The Basic Facts: The plaintiff, a pilot, sued the defendant, another pilot, for defamation based on a letter written by the defendant to the Federal Aviation Administration, which alleged that the plaintiff was medically unfit to be a pilot. The defendant claimed he was conditionally privileged to make the statements.

The Bottom Line:

• “An occasion makes a publication conditionally privileged if the circumstances induce a correct or reasonable belief that
  1. there is information that affects a sufficiently important public interest, and
  2. the public interest requires the communication of the defamatory matter to a public officer or a private citizen who is authorized or privileged to take action if the defamatory matter is true.
  Pate v. Service Merch. Co., Inc. , 959 S.W.2d 569, 576 (Tenn. Ct. App. 1996) (quoting [Restatement (Second) of Torts § 598 (1977)].” 132 S.W.3d at 365.
• “‘The privilege can be lost, however, if the defendant does not act with good faith or acts with actual malice. When a statement is conditionally privileged, it is not actionable unless actual or express malice is shown by the plaintiff.’ Id. at 577. If a statement is privileged, it is presumed to have been made without malice and plaintiff carries the burden of proving malice.” Id.
• “As this Court has explained:

  The concept of actual malice in defamation cases connotes more than personal ill will, hatred, spite, or desire to injure. Rather, it is limited to statements made with knowledge that they are false or with reckless disregard to their truth or falsity. Determining whether a defendant acted with reckless disregard requires the finder of fact to determine whether the defendant ‘in fact entertained serious doubts as to the truth of his [or her] publication.’

  Tomlinson v. Kelley , 969 S.W.2d 402, 405-06 (Tenn. Ct. App. 1997) (quoting Trigg v. Lakeway Publishers, Inc., 720 S.W.2d 69, 75 (Tenn. Ct. App. 1986)) (citations omitted).” Id. at 365-66.
• “Plaintiff produced numerous witnesses who had flown with him as passengers or as co-pilots or pilots. Several of these witnesses flew on the same flights that Defendant flew with Plaintiff. Every one of these witnesses testified that he had never witnessed Plaintiff sleep in the cockpit, take large doses of medication, complain of headaches, or suffer a personality or behavioral change. In addition, Defendant admitted he had no witnesses to his allegations that Plaintiff slept in the cockpit, that Plaintiff suffered behavioral changes, or that Plaintiff ever took four 800 milligram tablets of ibuprofen. Defendant also admitted that he had only seen Plaintiff take medication on the one occasion on which Defendant alleges Plaintiff took four 200 milligram tablets of ibuprofen. The evidence also showed that Defendant did not comply with the required reporting procedures of the NTSB or of Covenant by reporting immediately these allegations about Plaintiff. Instead, Defendant waited nearly two months after he was terminated and then composed the Letter on his home computer at 2 a.m.” Id. at 366.
• “Thus, material evidence was introduced at trial that showed Defendant either knew the allegations were false or, at the very least, acted with reckless disregard as to the truth or falsity of the allegations.” Id.

Other Sources of Note: Ausley v. Shaw , 193 S.W.3d 892 (Tenn. Ct. App. 2006) (holding that alleged defamatory statements made during the course of an ecclesiastical undertaking are not subject to civil liability); Smith v. Reed, 944 S.W.2d 623 (Tenn. Ct. App. 1997) (recognizing qualified privilege for reports of judicial proceedings to the public which are fair and accurate).

Recent Cases: Johnson v. Carnes , No. M2008-02373-COA-R3-CV, 2009 WL 3518184 (Tenn. Ct. App. Oct. 29, 2009) (affirming dismissal of defamation claim against plaintiff’s former minister on basis of the Ecclesiastical Abstention Doctrine).