Background Facts
Dr. Armin Oskouei, the owner of two medical facilities, filed a lawsuit alleging that Zachary Matthews, a defense attorney who represented clients in cases that tangentially involved the medical facilities, made defamatory statements suggesting that Oskouei performed “illegal” surgeries, among other things. Matthews moved to strike the defamation lawsuit pursuant to Georgia’s anti-Strategic Lawsuits Against Public Participation (“anti-SLAPP”) statute, OCGA § 9-11-11.1, which allows a trial court to strike certain claims based on a person’s right of petition or free speech when there is no “probability that the nonmoving party will prevail on the claim.” OCGA § 9-11-11.1 (b) (1). The trial court denied the motion to strike, but the Court of Appeals reversed that ruling in Matthews v. Oskouei, 369 Ga. App. 568 (894 SE2d 141) (2023). The Court of Appeals held that Oskouei could not establish a probability of prevailing on his defamation claims because he had not overcome Matthews’s defense of conditional privilege. In this respect, the court determined that Oskouei had not established that Matthews acted with “actual malice,” such that “Matthews knew that his statements were false or that he made them with a reckless disregard for the truth.”
Elements of a Defamation Claim
In Georgia, a claim for defamation has four elements: (1) a false and defamatory statement concerning the plaintiff; (2) an unprivileged communication to a third party; (3) fault by the defendant amounting at least to negligence; and (4) special harm or the actionability of the statement irrespective of special harm.
OCGA § 51-5-7 states:
The following communications are deemed privileged:
(1) Statements made in good faith in the performance of a public duty;
(2) Statements made in good faith in the performance of a legal or moral private duty;
(3) Statements made with a good faith intent on the part of the speaker to protect his or her interest in a matter in which it is concerned;
(4) Statements made in good faith as part of an act in furtherance of the person’s or entity’s right of petition or free
speech under the Constitution of the United States or the Constitution of the State of Georgia in connection with an
issue of public interest or concern, as defined in subsection (c) of Code Section 9-11-11.1;
(5) Fair and honest reports of the proceedings of legislative or judicial bodies;
(6) Fair and honest reports of court proceedings;
(7) Comments of counsel, fairly made, on the circumstances of a case in which he or she is involved and on the conduct of the parties in connection therewith;
(8) Truthful reports of information received from any arresting officer or police authorities; and
(9) Comments upon the acts of public men or public women in their public capacity and with reference thereto.
OCGA § 51-5-9 states, “In every case of privileged communications, if the privilege is used merely as a cloak for venting private malice and not bona fide in promotion of the object for which the privilege is granted, the party defamed shall
have a right of action.”
The Supreme Court of Georgia reversed the Georgia Court of Appeals in its February 18, 2025 decision, stating in answering whether “a plaintiff is required to show that the defendant acted with “actual malice” (i.e., knowledge
of falsity or reckless disregard for the truth) to defeat his defense of conditional privilege. We conclude that the “actual malice” standard does not apply in such cases. As we explain below, under OCGA § 51-5-9, to overcome a conditional privilege, a plaintiff must show that the defendant used the privilege “merely as a cloak for venting private malice and not bona fide in promotion of the object for which the privilege is granted.” And in light of the legal and historical context of the text of OCGA § 51-5-9—which was originally codified in 1860—we conclude that a plaintiff meets his burden under that statute by establishing that the defendant’s claim of privilege is a sham and that he made the allegedly defamatory statement with ill will toward the plaintiff or with an intent to injure him.”
The Supreme Court of Georgia explained: “In sum, the early nineteenth century English and American law cited above recognized a conditional privilege for statements made with a bona fide view to protect a legitimate societal or
personal interest. But a plaintiff could defeat such a defense by showing that the defendant used the privilege as a pretense to hide his true motive of malice. To that end, if the plaintiff could establish that the defendant made the allegedly defamatory statement with ill will or an intent to injure the plaintiff—rather than with the honest purpose of promoting a legitimate interest—the privilege was lost.”
“[W]hen a plaintiff is a private figure and does not seek presumed or punitive damages flowing from a defamatory statement about a matter of public concern, the “actual malice” standard in New York Times does not apply, and Georgia defamation law controls. It is in these sorts of cases that the Georgia statutes and decisional law about conditional privileges come into play.”
“The line of Court of Appeals cases applying the constitutional “actual malice” standard to a private-figure plaintiff seeking to defeat a conditional-privilege defense is not grounded in the historical and legal background of OCGA § 51-5-9. Rather, it appears that this line of cases inadvertently imported the New York Times “actual malice” standard into OCGA § 51-5-9, without analysis of the limited circumstances in which the United States Supreme Court has said that the standard applies as a matter of United States constitutional law, or of that Court’s acknowledgement that the New York Times “actual malice” standard is not based on the traditional meaning of “actual malice.” And as we explain more below, we therefore conclude that the “actual malice” standard in New York Times does not apply in the context of analyzing whether a private-figure plaintiff whose claim is based on defamatory statements that do not involve matters of public concern has overcome a conditional privilege as a matter of Georgia law.”
The Supreme Court of Georgia held: “Because the Court of Appeals incorrectly imported the “actual malice” standard into OCGA § 51-5-9 in this case, we vacate the Court of Appeals’s opinion and remand the case to that court for further proceedings consistent with this opinion. We also overrule several other Court of Appeals cases holding that a plaintiff must establish “actual malice” under New York Times to overcome a conditional-privilege defense under OCGA § 51-5-9.”
Source Oskouei v. Matthews, S24G0335.
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