C. [§ 3.161] Defamation Per Se and Per Quod

• Jurisdiction: Maryland

C. [§ 3.161] Defamation Per Se and Per Quod

The distinctions between defamation per se and defamation per quod retain significance in Maryland. Judge Battaglia noted this in her opinion for the Court in Independent Newspapers, Inc. v. Brodie, 407 Md. 415, 441-42, 966 A.2d 432, 448 (2009). She wrote:

We have retained the common law distinction between defamation per se and defamation per quod, which was described by Judge Marvin H. Smith, writing for a unani mous Court, in Metromedia, Inc. v. Hillman, 285 Md. 161, 172-73, 400 A.2d 1117, 1123 (1979), as:

[T]he only distinction remaining in Maryland between a libel per se and a libel per quod is that to recover the plaintiff must first show that the publication is defamatory. Where the words themselves impute the defamatory character [per se], no innuendo-no allegation or proof of extrinsic facts-is necessary; but otherwise, it is [per quod]. This is both a pleading rule and an evidentiary requirement. Where extrinsic facts must be shown in order to establish the defamatory character of the words sued upon, the omission to plead them makes the complaint demurrable for failure to state a cause of action. Failure to prove them would justify a directed verdict.

To establish a prima facie case of defamation, then, the plaintiff must show: "(1) that the defendant made a defamatory statement to a third person, (2) that the statement was false, (3) that the defendant was legally at fault in making the statement, and (4) that the plaintiff thereby suffered harm." Offen v. Brenner, 402 Md. at 198, 935 A.2d 719 at 723-24. In the case of defamation per quod, extrinsic facts must be alleged in the complaint to establish the defamatory character of the words or conduct. See M & S Furniture Sales Co., Inc. v. Edward J. De Bartolo Corp., 249 Md. 540, 544, 241 A.2d 126, 128 (1968) (stating that the "injurious effect [of the words or conduct] must be established by allegations and proof of special damage and in such cases it is not only necessary to plead and show that the words or actions were defamatory, but it must also appear that such words or conduct caused actual damage").

Independent Newspapers, Inc., 407 Md. at 441-42, 966 A.2d at 448.

The distinction between defamation per quod and defamation per se was reiterated by Judge Ellen Hollander in State Farm Mut. Auto. Ins. Co. v. Slade Healthcare, Inc., 381 F. Supp. 3d 536, 565 (D. Md. 2019):

"Maryland has retained the common law distinction between defamation per

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