Applying the Absolute Privilege to Defamation, Afforded in Judicial Proceedings, to Arbitration: A Logical Next Step for Ohio

• Author: Zachary B. Pyers - Daniel Bey
• Pages: 635-651

APPLYING THE ABSOLUTE PRIVILEGE TO

DEFAMATION, AFFORDED IN JUDICIAL PROCEEDINGS,

TO ARBITRATION: A LOGICAL NEXT STEP FOR OHIO

ZACHARY B. PYERS, J.D., LL.M. AND DANIEL BEY, J.D., LL.M.*

I. INTRODUCTION

A. Issue/Thesis

While the absolute privilege to defamation is indisputably recognized

during judicial proceedings, its role during arbitration proceedings is

anything but settled. This Article will examine whether the trend toward

extending the privilege to statements made in connection with arbitration

proceedings should be adopted in Ohio.

B. Brief Discussion

Arbitration is favored under Ohio law as an alternative method of

dispute resolution that helps to ease the burden on courts while allowing

potential litigants to fairly resolve disputes.1 Although Ohio law has never

specifically applied the absolute privilege to defamation that is afforded in

judicial proceedings to arbitration proceedings, an examination of other

jurisdictions makes it clear that a strong argument can be made for its

extension to those proceedings.2

This Article will first explore how absolute privilege in arbitration

proceedings has been adopted in many states, including California,

Maryland, South Carolina, and the District of Columbia, which are

extensively covered in this Article.3 Then, an argument will be made that

the absolute privilege to defamation that is afforded to judicial proceedings

should also be extended to arbitration proceedings under Ohio law.4

Copyright © 2017, Zachary Pyers & Daniel Bey.

1 “[A]rbitration is favored because it provides the parties thereto with a relatively

expeditious and economical means of resolving a dispute.” Schaefer v. Allstate Ins. Co., 63

Ohio St. 3d 708, 712, 590 N.E.2d 1242 (1992) (quoting Mahoning Cty. Bd. of Mental

Retardation & Dev. Disabilities v. Mahoning Cty. TMR Educ. Ass’n., 22 Ohio St. 3d 80,

83, 488 N.E.2d 872 (1986)).

2 See infra Part II.

3 See infra Sections II.B–II.E.

4 See infra Part III.

636 CAPITAL UNIVERSITY LAW REVIEW [45:635

II. THE TREATMENT OF THE ABSO LUTE PRIVILEGE TO DEFAMATION

IN OHIO AND ITS APPLICATION TO ARBITRATION PROCEEDINGS IN

CALIFORNIA, MARYLAND, SOUTH CAROLINA, AND THE DISTRICT O F

COLUMBIA

The cases explored throughout this Article demonstrate how several

states have extended the absolute privilege to defamation in arbitration

proceedings. While these cases do not create an absolute privilege, they

establish the framework and policy that Ohio should adopt when

expanding its own arbitration privilege.

A. Treatment of the Absolute Privilege to Defamation Under Ohio Law

As recognized by Ohio’s Seventh District Court of Appeals, “the

basic definition of defamation consists of a ‘false publication, made with

some degree of fault, reflecting injuriously on a person’s reputation or

exposing a person to public hatred, contempt, ridicule, shame, or disgrace,

or affecting a person adversely in his or her trade, business or

profession.’”5 Ohio law recognizes both absolute and qualified privileges

for certain statements, and these privileges constitute a defense to a

defamation claim when the statements are made in connection with a

judicial proceeding.6 The rule regarding absolute privilege in judicial

proceedings can be stated that “a statement made in a judicial proceeding

enjoys an absolute privilege against a defamation action as long as the

allegedly defamatory statement is reasonably related to the proceeding in

which it appears.”7 Notably, the privilege applies even if the speech is

false or malicious.8

According to Hoisington v. Jones, a Tenth District Court of Appeals

case, the absolute privilege afforded in judicial proceedings not only

applies to defamation, but also extends to other intentional torts associated

with the judicial proceedings.9 Further, the court recognized that the

Supreme Court of Ohio has been steadfast in its favoring of access to the

courts over the ability to seek redress for defamatory statements or other

5 Price v. Austintown Local Sch. Dist. Bd. of Educ., 897 N.E.2d 700, 705 (Ohio Ct.

App. 2008) (citing A & B-Abell Elevator Co. v. Columbus/Cent. Ohio Bldg. & Constr.

Trades Council, 73 Ohio St. 3d 1, 651 N.E.2d 1283 (1995)).

6 Costanzo v. Gaul, 62 Ohio St. 2d 106, 403 N.E.2d 979 (1980).

7 Hecht v. Levin, 66 Ohio St. 3d 458, 460, 613 N.E.2d 585 (1993) (citing Surace v.

Wuliger, 25 Ohio St. 3d 229, 495 N.E.2d 939 (1986)).

8 Surace, 25 Ohio St. 3d at 232; Erie Cty. Farmers’ Ins. Co. v. Crecelius, 122 Ohio St.

210, 171 N.E. 97 (1930).

9 Hoisington v. Jones, 10th Dist. Franklin Nos. 89AP-720, 89AP-743, 1990 WL 9270,

*3 (Feb. 6, 1990) (citing Surace, 25 Ohio St. 3d 229, 495 N.E.2d 939 (1986)).