In its recent decision in Cottrell v. Smith, S16A0013, 2016 Ga. LEXIS 473 (July 8, 2016), the Georgia Supreme Court addressed a number of topics that are common in many defamation cases and clarified the law in the areas of defamation per se, limited purpose public figures and actual malice. The court’s ruling acknowledged the constitutional safeguards that protect our free speech rights when commenting on public controversies.
In Cottrell, plaintiff Stanley Cottrell, known as a runner with a Christian evangelical emphasis, asserted numerous claims against several defendants, including Peggy Smith, a woman with whom he had had an affair, and Peggy Smith’s daughter-in-law, Karen Smith. His claims for defamation were based on statements the Smiths made in blog postings, Facebook messages and emails to a list serve group. Among the complained-of communications were: (i) a post on Karen Smith’s blog based on information she received from a scientist who worked with Cottrell at a company where Cottrell was CEO, complaining “I had $8 million invested in the company and lost it all through fraud that was perpetrated by [Cottrell] and others at the company”; (ii) a post on Karen Smith’s blog that Cottrell’s “activities with the women that he has deceived and taken money from are criminal”; and (iii) a Facebook message sent by Peggy Smith to one of Cottrell’s Facebook friends quoting a poster from a running blog and indicating that Cottrell “reported seeing MIA’s in Viet Nam, apparently as part of a scam so that he could make millions on the families of missing Americans.” Cottrell, 2016 Ga. LEXIS at *21, *26-27, 30.
In upholding the trial court’s grant of judgment notwithstanding the verdict in favor of the defendants (which overturned the jury award of $635,000 for Cottrell), the Georgia Supreme Court found that “Cottrell properly was found to be a public figure in the spheres of running and Christian evangelism.” Id. at *19. The court held that a heightened, actual malice standard should be applied to the complained-of statements because all of them potentially bore on Cottrell’s character, which, the court said, was “plainly germane to his Christian evangelism.” Id. Cottrell’s character, according to the court, was the controversy.
Thus, to prevail with his claims, Cottrell had to demonstrate by clear and convincing evidence that the challenged statements were made by the declarant with actual knowledge that the statements were false or with reckless disregard of their truth or falsity. However, the evidence did not support Cottrell’s claims. For example, the court found no actual malice with respect to Karen Smith’s blog post about the scientist because it was based on conversations with the scientist, she believed what the scientist told her, she took “a lot of notes” during the conversations and, prior to posting the blog, she sent it to the scientist, asking him to make sure her facts were correct. Id. at *24-25. Likewise, there was no evidence that Peggy Smith was aware that she could be circulating false information in the Facebook message about MIAs in Vietnam, and thus actual malice was not demonstrated. Id. at *30.
Cottrell also asserted that the blog characterizing his activities with women to be “criminal” constituted “defamation per se” because it imputed that he committed a crime. In rejecting his defamation claims, the Georgia Supreme Court clarified that to constitute defamation per se, “the statement must give the impression that the crime is actually being charged against the individual and couched in language as might reasonably be expected to convey such meaning to a hearer of the statement.” Id. at *16. Vague statements, even if derogatory, do not constitute defamation per se where the statements do not impute a crime to the plaintiff. The court held that the blog post was merely an opinion and not actionable. Id. at *27.
The Georgia Supreme Court’s decision in Cottrell examined numerous statements challenged by Cottrell as being defamatory. When read in context, none of the statements were actionable. Cottrell could not overcome the demanding constitutional safeguards that protect comments about public figures involved in public controversies.