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
SUMMARY

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. Although ohio law has never specifically applied absolute privilege to defamation that is afforded in judicial proceedings to arbitration proceedings, an examination of other jurisdictions makes it clear that a... (see full summary)

 
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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)).

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