MATTHEWS v. OSKOUEI
A23A0863
In the Court of Appeals of Georgia
October 28, 2025
MARKLE, Judge.
FIFTH DIVISION BROWN, C. J., MCFADDEN P. J., and MARKLE, J. NOTICE: Motions for reconsideration must be physically received in our clerk‘s office within ten days of the date of decision to be deemed timely filed. https://www.gaappeals.us/rules
MARKLE, Judge.
there was a probability of prevailing on his claims. Matthews v. Oskouei, 369 Ga. App. 568, 575-576 (b) (iii) (894 SE2d 141) (2023). Specifically, we determined that Matthews’ allegedly defamatory statements to two opposing counsel during ongoing litigation were conditionally privileged pursuant to
Our Supreme Court granted certiorari to consider, as an issue of first impression, whether “actual malice” was the proper standard under
The Court first noted the difference between defamation actions against public figures as opposed to private individuals, explaining that
the United States Supreme Court has held that the First Amendment places limits on state defamation law when the plaintiff is a public official or public figure and when a private-figure plaintiff seeks presumed or punitive damages relating to a defamatory statement about matters of public concern, such that the “actual malice” standard announced
in New York Times (i.e., knowledge of falsity or reckless disregard for truth) applies in those sorts of cases. But the Court has determined that in all other respects, the states are free to impose their own defamation rules, so long as they do not impose strict liability. Consequently, when 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.
Oskouei, 321 Ga. at 22 (3) (c); New York Times Co. v. Sullivan, 376 US 254, 269 (II), 279-280 (II) (84 SCt 710, 11 LE2d 686) (1964); Gertz v. Robert Welch, Inc., 418 US 323, 347 (III) (94 SCt 2997, 41 LE2d 789) (1974).
And, in order to defeat a prima facie showing of conditional privilege under Georgia law, a plaintiff must show, by a preponderance of the evidence, “that the defendant used the privilege as a pretense, such that the allegedly defamatory
statement was not made for one of the bona fide purposes listed in
Now that the case is before us, we vacate Division (b) of our prior opinion to the extent it held that Oskouei could only defeat the conditional privilege under the “actual malice” standard. Matthews, 369 Ga. App. at 573-576 (b) (iii). Importantly, the Supreme Court did not disturb our conclusion that Matthews had made a prima facie showing that his allegedly defamatory statements were conditionally privileged pursuant to
only a portion of a Court of Appeals’ opinion and reverses, it is for the Court of Appeals to determine on remand whether the portions of its earlier opinion that were not considered by this Court are consistent with this Court‘s ruling. If such portions are consistent with this Court‘s ruling, then they become binding upon the return of the remittitur.“). Thus, it remains to be determined whether Oskouei can defeat the privilege.
As our Supreme Court noted, this inquiry begins with the threshold “issues of whether a plaintiff in a defamation case is a public or private figure and whether he seeks presumed or punitive damages related to a defamatory statement about a matter of public concern,” so as to determine whether the “actual malice” or the “private malice” standard applies. Oskouei, 321 Ga. at 22 (3) (c), n. 19. Neither this Court nor the trial court made that initial determination. Oskouei, 321 Ga. at 27 (4), n. 27. We thus remand the case to the trial court to make this determination in the first instance, consistent with the Supreme Court‘s opinion. See Oskouei, 321 Ga. at 28-29 (McMillian, J., concurring) (noting Matthews’ arguments below that issues related to the allegedly defamatory statements are matters of public concern); Crippen & Lawrence Inv. Co. v. Tract of Land Being Known as 444 Lemon St., Marietta Cobb
County, 359 Ga. App. 336, 337 (857 SE2d 503) (2021) (remanding case to trial court to consider issue in the first instance).
Judgment vacated in part, and case remanded with direction. Brown, C. J. and, McFadden, P. J., concur.