From Harstad v. Whiteman, COA, Published 3/4/2011:
The essential elements of defamation are: “(a) a false and defamatory statement concerning another; (b) an unprivileged publication to a third party; (c) fault amounting at least to negligence on the part of the publisher; and (d) either actionability of the statement irrespective of special harm or the existence of special harm caused by the publication.” Restatement (Second) of Torts § 558 10 (1977). When the communication concerns untrue allegations of criminal behavior or unfitness to perform a job, the communication is libelous per se or slanderous per se, and proof of context indicating malice is not required. “Although the law presumes malice where publications are slanderous per se, yet where the publication is made under circumstance disclosing qualified privileges, it is relieved of that presumption and the burden is on the plaintiff to prove actual malice.” Weinstein v. Rhorer, 240 Ky. 679, 42 S.W.2d 892, 895 (1931); see also Columbia Sussex Corp., Inc. v. Hay, 627 S.W.2d 270, 273 (Ky. App. 1981) (setting out elements of defamation).
The basis of the circuit court’s summary judgment was that all the allegedly defamatory statements were subject to a qualified privilege. Citing Landrum v. 2 According to the two complaints in the respective lawsuits, nine (9) of these statements were uttered by Whiteman, Thacker or unknown defendants and two (2) were uttered by Verna Lowe. All of the statements were made by Asbury employees in the course of investigating complaints from students and others about Harstad and his role as an Asbury professor.
Braun, 978 S.W.2d 756 (Ky. App. 1998), the circuit court determined that the “statements that Harstad alleges are defamatory were made within the context of the employment relationship and are qualifiedly privileged.” We agree.
“The determination of the existence of privilege is a matter of law.” Columbia Sussex, 627 S.W.2d at 276.3 Once a privilege has been placed in issue, “it thereupon falls upon plaintiff to defeat this defense by a showing that either there was no privilege under the circumstances or that it had been abused.” Id. If the plaintiff fails to adduce such evidence sufficient to create a genuine issue of fact, qualified privilege remains purely a question of law under the summary judgment standard. Cargill v. Greater Salem Baptist Church, 215 S.W.3d 63, 68 (Ky. App. 2006) (“Although the jury normally determines whether a privilege was abused, a motion for summary judgment is appropriate when the record shows no facts which would lead to the conclusion that the Appellees acted with malice.”). The circuit court’s summary judgment in this case recognizes these concepts and this analytical procedure.
