Argued: October 11, 2016
Court for Baltimore County Case No. 03-C-12-007007
Barbera, C.J. Greene Adkins McDonald Watts Hotten Getty, JJ.
case involves a matter of first impression requiring this
Court to determine the standard of proof necessary to
overcome a common law conditional privilege in a purely
private defamation action. Purely private defamation involves a
defamation action that arises "when the reputation of a
private individual is tarnished by a report of a private
matter not of general or public concern[.]" Jacron
Sales Co. v. Sindorf, 276 Md. 580, 588, 350 A.2d 688,
693 (1976). Although this Court and the Court of Special
Appeals have addressed issues concerning the standard of
proof of fault in defamation cases, we have not been
specifically asked to decide the standard of proof necessary
to overcome a common law conditional privilege in a purely
private defamation action. In addressing this matter of first
impression, we are confronted with two alternative standards:
proof by a preponderance of the evidence or proof by clear
and convincing evidence.
defamation jurisprudence traces its origins to a number of
seminal First Amendment cases of the United States Supreme
Court, the resolution of defamation claims brought by private
individuals has largely been left to the province of State
courts. See Gertz v. Robert Welch, Inc., 418 U.S.
323, 347-48 (1974). In cases of purely private defamation,
this Court has held that proof of fault must meet the
standard of the preponderance of the evidence, the quantum of
proof ordinarily required in other types of actions for
negligence. See Jacron, 276 Md. at 596-97, 350 A.2d
at 697-98. Specifically, this Court has held that a
"standard of negligence" as set forth in the
Restatement (Second) of Torts § 580B (Am. Law Inst.
1977),  is to be applied in cases of purely
private defamation. Jacron, 276 Md. at 596, 350 A.2d
at 697. Under this standard, the burden of proving falsity
falls upon the plaintiff, rather than the burden of proving
the truth of the alleged defamatory statement falling upon
the defendant. Id. at 597, 350 A.2d at 698. If the
defendant asserts a common law conditional privilege, the
plaintiff bears the additional burden of overcoming that
privilege to prevail on the defamation claim.
well established that, in a defamation action, a defendant
may assert a qualified or conditional privilege. See
Gohari v. Darvish, 363 Md. 42, 55, 767 A.2d 321, 327
(2001). A common law conditional privilege arises from the
principle that a defendant may not be held liable for an
otherwise provable defamatory statement if publication of the
statement advances social interests that outweigh a
plaintiff's reputational interest. See Marchesi v.
Franchino, 283 Md. 131, 135, 387 A.2d 1129, 1131 (1978).
A defendant may also assert what has been described in case
law as a First Amendment conditional privilege. The 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, i.e., "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 (1964); Curtis
Publ'g Co. v. Butts, 388 U.S. 130, 155 (1967);
Gertz, 418 U.S. at 335.
existence of both common law and First Amendment conditional
privilege is a question of law, and the defendant has the
burden of proof with respect to establishing the privilege.
See Piscatelli v. Van Smith, 424 Md. 294, 307, 35
A.3d 1140, 1147 (2012). If 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).
The definition of malice-a person's actual knowledge that
his or her statement is false, coupled with his or her intent
to deceive another by means of the statement-does not cover
the standard of proof necessary to overcome the conditional
privilege. Case law demonstrates that the standard of proof
that is required to overcome a First Amendment conditional
privilege is clear and convincing evidence of knowledge of a
statement's falsity or reckless disregard of whether the
statement was false or not. See New York Times, 376
U.S. at 279-80. In this case, however, it is the standard of
proof that an individual must satisfy to overcome a common
law conditional privilege, i.e., to establish
malice, in a purely private defamation action that is at
issue. For the reasons stated below, we hold that, in a
purely private defamation action, an individual asserting a
defamation claim must overcome a common law conditional
privilege by a preponderance of the evidence.
facts giving rise to this purely private defamation action
are as follows. Katherine Seley-Radtke
("Seley-Radtke"), Ph.D., Petitioner, and
Ramachandra S. Hosmane, Ph.D. ("Hosmane"),
Respondent, were colleagues in the Department of Chemistry at
the University of Maryland, Baltimore County
("UMBC"). Hosmane was employed as a professor of
chemistry at UMBC from 1982 until 2010, when he resigned
following allegations of sexual assault of a graduate
student. Based on allegations that Hosmane had sexually
assaulted one of his graduate students, Brahmi Shukla
("Shukla"), UMBC officials conducted an administrative
investigation and determined that Hosmane had violated
UMBC's sexual harassment policy. In addition to
allegations of sexual assault, UMBC investigated whether an
e-mail sent to Shukla regarding the sexual assault, which
Shukla characterized as threatening, had been authored by
Hosmane. The e-mail was sent from a person named "Nimmy
Watson, " a person unknown to Shukla; Shukla testified
at trial that the contents of the Watson e-mail
to Hosmane, on December 10, 2009, UMBC informed him of the
results of the administrative investigation and provided him
with three options: (1) submit to a two-year suspension
without pay; (2) avail himself of the administrative appeal
process; or (3) retire without the results of the
investigation being made public. Hosmane selected the third
option and resigned and retired, effective January 1, 2010.
As a result, UMBC did not make public the findings of its
investigation, nor was Hosmane sanctioned by UMBC.
Office of the State's Attorney for Baltimore County,
however, opened a criminal case against Hosmane stemming from
the alleged sexual assault, and charged him with
fourth-degree sex offense and second-degree assault in the
District Court of Maryland sitting for Baltimore County, but
subsequently nolle prossed the charges. Hosmane and Shukla
entered into a settlement agreement ("the settlement
agreement") concerning the sexual assault matter, in
which Hosmane was to pay Shukla $10, 000 and Shukla was to
withdraw any civil and criminal claims against Hosmane
related to the alleged sexual assault.
December 10, 2010, Hosmane filed in the Circuit Court for
Baltimore County ("the circuit court") a complaint
against UMBC and other defendants related to his resignation
from UMBC ("the UMBC case"). While the UMBC case
was pending, Hosmane submitted a Maryland Public Information
Act ("public information") request seeking
documents from UMBC. In August 2011, Hosmane received a
number of documents from UMBC as a result of the public
information request. As a result, on July 6, 2012, Hosmane
filed in the circuit court a two-count complaint against
Seley-Radtke seeking damages for defamation and false light
invasion of privacy. In the complaint, Hosmane alleged
"some of the numerous instances in which"
Seley-Radtke had defamed him:
a. In 2009, [Seley-Radtke] told the chemistry department
chair, at least one co-worker, general counsel for UMBC, and
others, that [Hosmane] had keys to many offices in the
chemistry department, that he had stolen private documents
regarding [Seley-Radtke] out of said offices, and that he had
even sold some of the documents for money. None of these
assertions are true.
b. In February 2010, after [Hosmane]'s employment with
UMBC had come to an end, [Seley-Radtke] wrote an email to the
chemistry department chair and general counsel for UMBC in
which she stated, among several defamatory statements, that
[Hosmane] "is an unbalanced individual who has done some
crazy and bizarre things, not to mention he's prone to
sudden outbursts, and given the shootings in Alabama, I worry
for my safety and for that of anyone around me . . . ."
c. The same days she wrote the email referenced above,
[Seley-Radtke] wrote another email to these same people and
referred to [Hosmane] "stealing documents" and
implied that [Hosmane] had falsely accused one of his
students of trying to kill him. In this second email,
[Seley-Radtke] also called [Hosmane] a "nutcase, "
and said that "it is not far-fetched that he could do
something crazy at this point . . . ." These assertions
are all demonstrably untrue.
d. [Seley-Radtke] has additionally claimed in communicating
with others that [Hosmane] was banned from campus following
the end of his employment at UMBC and that he was also not
allowed to meet with his former students. This is not true.
e. [Seley-Radtke] has also claimed that [Hosmane], in
speaking with his students, would make comments to them about
[Seley-Radtke]'s body parts, particularly her breasts and
buttocks. This is totally false.
f. Moreover, [Seley-Radtke] has claimed that [Hosmane] tried
to convince one of [Seley-Radtke]'s former post-doctorate
students to file a formal complaint against [Seley-Radtke],
even going so far as to offer the student a job if he would
file the complaint. Again, this is entirely untrue.
answer to the complaint, among other things, Seley-Radtke
raised the affirmative defense of privilege, contending that
"[a]ny statements made by [her] were privileged and
April 4, 2013, Hosmane filed an amended complaint naming UMBC
and the State as additional defendants in the Seley-Radtke
case. The circuit court subsequently consolidated the UMBC
case and the Seley-Radtke case for the purpose of trial only.
On April 29, 2014, the circuit court granted the State's
and UMBC's motion for summary judgment as to
Hosmane's claims for defamation and invasion of privacy
in the Seley-Radtke case on the basis of sovereign immunity.
The UMBC case and Hosmane's case against Seley-Radtke
proceeded to a jury trial.
to trial, Hosmane filed a motion in limine concerning several
evidentiary matters; a few days later, Hosmane filed a
supplemental motion in limine. In relevant part, Hosmane
sought to exclude documents and testimony concerning the
settlement agreement between himself and Shukla, and to
redact from two exhibits the following language from
Seley-Radtke's e-mail: "Btw . . . I spoke to Det.
John Taylor the other day and he mentioned that there are
some potential new charges against [Hosmane], due to the
harassing emails. Can't that keep him off
campus?" (Ellipsis in original). During trial, the
circuit court denied the motion in limine as to those two
matters. As such, during trial, Shukla was permitted to
testify about the settlement agreement, and
Seley-Radtke's un-redacted e-mails, containing the
language that Hosmane sought to redact, were admitted into
trial, due to a scheduling issue, Shukla was permitted
testify first. Shukla testified about the settlement
agreement. Specifically, during Shukla's direct
examination, the following exchange occurred:
[SELEY-RADTKE'S COUNSEL]: Now you also mentioned, a while
back in your testimony, that there were criminal charges
filed against  Hosmane for the assault? What happened with
that criminal case?
[HOSMANE'S COUNSEL]: Objection.
THE COURT: Overruled. You may answer the question.
[SHUKLA]: It was dismissed.
[SELEY-RADTKE'S COUNSEL]: And why was it dismissed to
[HOSMANE'S COUNSEL]: Objection.
THE COURT: Overruled. You may answer the question.
[SHUKLA]: Because there was a settlement of about $10, 000
made, and therefore it was dismissed.
[HOSMANE'S COUNSEL]: Objection. Move to strike.
THE COURT: Overruled.
closing arguments, the circuit court reviewed proposed
verdict sheets and jury instructions with the attorneys.
Hosmane requested that the circuit court give a jury
instruction on the republication or repetition of defamatory
statements. The circuit court declined to give the
instruction. The circuit court, however, gave an instruction
concerning opinions as defamation.
review of the proposed verdict sheets and jury instructions,
Seley-Radtke contended that her statements regarding Hosmane
were protected by a common interest conditional
privilege. The circuit court ruled, as a matter of
law, that Seley-Radtke was entitled to a conditional
privilege for the allegedly defamatory statements; Hosmane
did not argue otherwise.
the standard for overcoming the conditional privilege,
Hosmane requested that the circuit court give Maryland Civil
Pattern Jury Instruction 12:12, which provides that,
"[i]n order to recover, the plaintiff must prove by a
preponderance of the evidence that the defendant made the
statement with actual knowledge that the statement was false,
coupled with the intent to deceive another person by means of
the statement." MPJI-Cv 12:12 (4th ed., 2013 Supp.). On
the other hand, Seley-Radtke argued that the pattern jury
instruction should be "modified" to use language
that the standard of proof is clear and convincing evidence,
not a preponderance of the evidence. The circuit court agreed
with Seley-Radtke and determined that the applicable standard
of proof to overcome the conditional privilege was clear and
convincing evidence. The circuit court stated:
[T]he cases that have been cited so far, and I've
reviewed them . . . I have yet to find in any of the cases
that have been cited in this court this morning and handed to
the court, plus other cases I've read where there's a
suggestion that the privilege is defeated by a preponderance
of the evidence. I just haven't seen it. . . . So, . . .
the instruction is gonna be by clear and convincing evidence.
circuit court instructed the jury as follows: "In order
to recover, the Plaintiff must prove by clear and convincing
evidence that the Defendant made the statements with actual
knowledge that the statement was false, coupled with the
intent to deceive another person by means of the
9, 2014, the jury found in favor of Seley-Radtke. Hosmane
noted a timely appeal to the Court of Special Appeals. On
February 24, 2016, in a reported opinion, the Court of
Special Appeals reversed the circuit court's judgment and
remanded the case for a new trial. See Hosmane v.
Seley-Radtke, 227 Md.App. 11, 16, 132 A.3d 348, 351
(2016). The 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. The
Court of Special Appeals explained:
Recognizing that malice means different things in different
context, the Court [of Appeals has] adopted a "uniform
standard" or definition of malice applicable to
determining abuse of a conditional privilege and required the
same to establish punitive damages. This did not change or
elevate the burden of proof in common law defamation required
to overcome the conditional privilege. No where [sic] did the
Court of Appeals say that plaintiffs in a common law
defamation action, involving private individuals, not
implicating the First Amendment, were entitled to higher
protection and hence the higher burden of proof. . . . We
hold that in common law tort defamation involving only
private individuals, the burden of persuasion a plaintiff
must satisfy to overcome the conditional privilege is
preponderance of the evidence, while in First Amendment cases
it is clear and convincing evidence.
Id. at 27-28, 132 A.3d at 358 (citations omitted).
Thus, the Court of Special Appeals remanded the case to the
circuit court for a new trial. Id. at 16, 123 A.3d
opinion, "[f]or the guidance of the [circuit] court on
retrial, " the Court of Special Appeals addressed two
evidentiary issues raised by Hosmane. Id. at 16, 29,
123 A.3d at 351, 359. Specifically, the Court of Special
Appeals addressed the circuit court's decision not to
redact part of an e-mail written by Seley-Radtke that was
admitted into evidence that referenced "potential new
charges" and "harassing emails, " and the
circuit court's decision to admit Shukla's testimony
concerning the settlement agreement. Id. at 29-31,
132 A.3d at 359-60. The Court of Special Appeals determined
that the two sentences in Seley-Radtke's e-mail and
Shukla's testimony about the settlement agreement were
not relevant, were "highly prejudicial[, ]" and
could have led the jury to believe that Hosmane "was a
sex abuser who paid money to resolve such a claim, that he
was the subject of unrelated charges and was sending
harassing emails." Id. at 32, 132 A.3d at 361.
filed a petition for a writ of certiorari, which
this Court granted on May 20, 2016. Seley-Radtke v.
Hosmane, 448 Md. 29, 136 A.3d 816 (2016).
simply, Seley-Radtke contends that clear and convincing
evidence is the proper standard of proof to overcome a common
law conditional privilege in a purely private defamation
action. Specifically, Seley-Radtke argues that the malice
required for overcoming a common law conditional privilege
and the malice required for establishing punitive damages
are, by definition, the same, and, therefore, the standard of
proof necessary to prove both should be the same.
Seley-Radtke asserts that adopting the clear and convincing
evidence standard as the standard of proof necessary to
overcome a common law conditional privilege promotes the
State's policy of protecting free speech and furthers
consistency in the law of defamation.
responds that the application of the preponderance of the
evidence standard to overcome a common law conditional
privilege is consistent with well-established Maryland case
law. Hosmane contends that the statements in this case that
are subject to a common law conditional privilege are already
sufficiently protected by the definition of malice, which
requires a plaintiff to prove "that the defendant made
his or her 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 the
statement." (Citation, internal quotation marks, and
emphasis omitted). Hosmane argues that this definition of
malice sufficiently protects privileged communications and
that the standard of proof need not be clear and convincing
evidence. Hosmane asserts that applying the clear and
convincing evidence standard of proof would significantly
narrow the distinction between purely private defamation
actions and those implicating the First Amendment, thereby
providing fewer protections to private individuals who have
been defamed. Additionally, Hosmane maintains that adopting
the clear and convincing evidence standard would upend
well-established case law and create confusion in Maryland
defamation jurisprudence rather than provide clarity.
Court reviews a trial court's giving of a jury
instruction for abuse of discretion. See Keller v.
Serio, 437 Md. 277, 283, 85 A.3d 283, 286 (2014).
"In determining abuse of discretion in this context, we
look to the following factors: (1) whether the requested
instruction was a correct statement of the law; (2) whether
it was applicable under the facts of the case; and (3)
whether it was fairly covered in the instructions actually
given." Id. at 283, 85 A.3d at 286 (citation
and internal quotation marks omitted). Whether a jury
instruction was a correct statement of the law is a question
of law, which we review without deference. See,
e.g., Griffin v. Lindsey, 444 Md. 278, 285, 119
A.3d 753, 757 (2015) ("We review questions of law
without deference." (Citation omitted)). As this Court
has observed, though, even in areas where a trial court has
discretion, "no discretion is afforded to trial [court]s
to act upon an erroneous conclusion of law." John
Hopkins Hosp. v. Pepper, 346 Md. 679, 700, 697 A.2d
1358, 1368 (1997). Accordingly, although we determine whether
a trial court's decision as to whether to give a
particular jury instruction was an abuse of discretion, we
review without deference the issue of whether the jury
instruction was a correct statement of the law.
defamatory statement is one which tends to expose a person to
public scorn, hatred, contempt[, ] or ridicule, thereby
discouraging others in the community from having a good
opinion of, or associating with, that person."
Gohari, 363 Md. at 54, 767 A.2d at 327 (citation and
internal quotation marks omitted). Whether a statement is
defamatory is a question of law. Piscatelli, 424 Md.
at 306, 35 A.3d at 1147.
United States Supreme Court ("the Supreme Court")
and Maryland appellate courts have addressed a myriad of
issues related to proof of defamation, First Amendment
conditional privilege, and common law conditional privileges.
In New York Times Co. v. Sullivan, 376 U.S.
254, 256, 279-80 (1964), the Supreme Court considered
"the extent to which the constitutional protections for
speech and press limit a State's power to award damages
in a libel action brought by a public official[, in that
case, an elected Commissioner of the City of Montgomery,
Alabama, ] against critics of his official conduct[, ]"
The constitutional guarantees [of the First and Fourteenth
Amendments] require . . . a federal rule that prohibits a
public official from recovering damages for a defamatory
falsehood relating to his official conduct unless he proves
that the statement was made with 'actual malice'-that
is, with knowledge ...