BlogLine

Oskouei v. Matthews: Georgia Supreme Court clarifies the standard for defeating conditional privilege in defamation cases 

3/26/25

By: P. Michael Freed and Xander D. Melnick

Addressing an issue of first impression, the Supreme Court of Georgia recently held that the New York Times v. Sullivan “actual malice” standard does not apply to a defamation plaintiff’s burden to defeat a conditional privilege defense under Georgia law. See Oskouei v. Matthews, No. S24G0335, — S.E.2d —, 2025 WL 515811 (Ga. Feb. 18, 2025). Instead, O.C.G.A. § 51-5-9 requires the plaintiff to show that the defendant used the privilege “merely as a cloak for venting private malice and not bona fide in promotion of the object for which the privilege is granted.” The plaintiff can meet that burden by establishing that the conditional privilege claim is a sham and that the defendant “made the allegedly defamatory statement with ill will toward the plaintiff or with an intent to injure him.” That standard differs from “actual malice” which, the Court explained, does not apply to a private figure’s defamation claim if it is found that his statements were not of public concern.   

Dr. Armin Oskouei filed a defamation lawsuit against defense attorney Zachary Matthews. Oskouei alleged that Matthews made defamatory statements implying that Oskouei performed “illegal” surgeries. Matthews sought to dismiss the lawsuit under Georgia’s anti-SLAPP statute, O.C.G.A. § 9-11-11.1, which protects individuals from lawsuits that infringe on free speech when there is no likelihood of the plaintiff prevailing. The trial court denied Matthews’ motion to strike, finding that Oskouei had demonstrated a probability of prevailing on his claims. However, the Court of Appeals of Georgia reversed and “determined that Oskouei could not establish a probability of prevailing on his defamation claims because he could not prove the second element: an unprivileged communication to a third party.” The Court of Appeals applied the “actual malice” standard to the conditional privilege defense.  

The Supreme Court reversed. It rejected the application of the “actual malice” standard to conditional privilege defenses in private-figure defamation cases and concluded that the Court of Appeals incorrectly imported that standard into O.C.G.A. § 51-5-9.  

This ruling has significant implications for defamation law in Georgia. By distinguishing between “actual malice” and “private malice,” the Court has provided clarity on the evidentiary burden for plaintiffs seeking to overcome conditional privilege defenses. The decision underscores the importance of understanding the nuances of privilege and malice in defamation cases, particularly for private individuals. 

If you have any questions about the Oskouei case or defamation and anti-SLAPP claims, please contact attorneys P. Michael Freed at michael.freed@fmglaw.com or Xander D. Melnick at xdmelnick@fmglaw.com or any of the attorneys in FMG’s Tort & Catastrophic Loss and Appellate Sections.