Where an otherwise defamatory statement is subject to a qualified privilege, a plaintiff can overcome that privilege by showing that the defendant acted with actual malice. However, “actual malice” in the context of a defamation action–also known as “New York Times malice,” is a different concept than the common-law malice ordinarily required to support an award of punitive damages. Actual malice does not require evil intent, spite, or ill will. A speaker acts with actual malice when he knows that his statement is false or acts with reckless disregard as to its truth. Mere dislike of the plaintiff is not sufficient to indicate a speaker acted with actual malice.
The standard for whether a defendant has uttered a defamatory statement with actual malice is a subjective one. In a lawsuit against a newspaper, for example, the plaintiff would not necessarily prevail merely by showing that the publisher failed to conduct a sufficient factual investigation or that a “reasonably prudent” publisher would not have published the story. Reckless disregard for the truth requires more than just a departure from professional journalistic standards. (See Harte-Hanks Commc’ns, Inc. v. Connaughton, 491 U.S. 657, 666 (1989)). Rather, the court must get into the mind of the publisher and determine its state of mind at the time of publication. Reckless disregard for truth requires a high degree of awareness of probable falsity, such as when a publisher entertains “serious doubts as to the truth of his publication” but publishes the story anyway. (See St. Amant v. Thompson, 390 U.S. 727, 731 (1968)).
The distinction between actual malice and common-law malice was explained last month in the Texas case of Tyson v. Austin Eating Disorders Partners, LLC. Edward Tyson worked for Austin Eating Disorders Partners (AED) as medical director of AED’s Austin eating disorder treatment center. After Tyson was removed from his position, he asked his accountant to inquire about AED’s improved financials. Mark McCallum, CFO of AED, responded to the inquiry with an email to Tyson, AED’s Board of Directors, AED’s attorney, and AED’s accountant stating that AED’s financials had improved because Tyson had been a bad medical director who had no idea how to run the treatment center and took kickbacks for referring patients to other facilities. In a Second Amended Complaint asserting various defamation theories, Tyson conceded that McCallum’s email was subject to a qualified privilege, but argued that he overcame the privilege by alleging that McCallum acted with actual malice. AED and McCallum moved to dismiss the claim.