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,
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
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.
If you have questions about this Alert, please
contact Cynthia L. Counts, Kenneth M. Argentieri, Amy C. Gross, any
of the attorneys in the Media and Communications Law Group or
the attorney in the firm with whom you are regularly in
Disclaimer:This Alert has been
prepared and published for informational purposes only and is not
offered, nor should be construed, as legal advice. For more
information, please see the firm's
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