Candidate for election to a public office alleges he was the target of defamatory statements made on "Facebook" and on another Internet website by a competitor seeking election to the same office

Plaintiff [Candidate], a County Officer* was running for elective office alleged that another county officer  [County Sheriff] running for the same elective office, made two defamatory statements concerning Candidate, one of which was published on Respondent's campaign Facebook site and a second published on another Internet website. Supreme Court denied Respondent's motion for summary judgment and, as relevant here, Respondent's motion seeking dismissal of the complaint with respect to the Facebook and Internet postings alleged by Candidate to be defamatory.

After addressing a number of procedural issues, the Appellate Division rejected Respondent's contention that he was "shielded from liability due to absolute immunity." Absolute immunity,** explained the court, protects government officials, such as Respondent, "with respect to statements made during the discharge of those responsibilities about matters which come within the ambit of those duties," citing Clark v McGee, 49 NY2d 613.

The court noted that Candidate could not maintain a defamation claim against the County Sheriff based upon statements "emanating from official reports and communications." Here, however, the Appellate Division said that the documentary evidence in the record established that the statements challenged by Candidate were not posted on the County Sheriff's official website but were posted on County Sheriff's campaign Facebook page and another Internet website. Under these circumstances, opined the Appellate Division, County Sheriff "cannot rely on absolute immunity" as a defense.

Turning to the Facebook posting, Candidate alleged that the Facebook posting stated, "this 'is' definitely about politics, and greed which often go hand in hand. Making over $200,000 a year and pilfering free gas from taxpayers, it's unacceptable and as an elected official I'm going to call it as I see it." The County Sheriff, in rebuttal argued that this Facebook posting was "nonactionable opinion because it was supported by facts and was in response to [Candidate's] attack on his credibility."

The Appellate Division disagreed, opining that "[t]he statement that [Candidate] was 'pilfering free gas from taxpayers' is 'susceptible to a defamatory meaning, inasmuch as [it] convey[s], at a minimum, serious impropriety and, at worst, criminal behavior.'" Further, the court observed that "such statement also 'has a precise meaning that is capable of being proven true or false,'" and as such, "Supreme Court correctly concluded that this statement was actionable."

County Sheriff also contended that Candidate "failed to establish actual malice." On this point the Appellate Division, citing Kipper v NYP Holdings Co., Inc., 12 NY3d 348. said that "[a]s a public figure, [Candidate] must prove by clear and convincing evidence that [County Sheriff] made the alleged defamatory statements with actual malice — i.e., 'with knowledge that [they were] false or with reckless disregard of whether [they were] false or not.'"

Candidate's complaint, said the court, alleged that County Sheriff published the false statements and that the statements "were made in bad faith, with reckless disregard for the truth" and "tend[ed] to subject [Candidate] to public contempt, ridicule, aversion, and disgrace." The Appellate Division said that in view of these allegations, as well as the specific statements at issue, it was satisfied that Candidate had sufficiently pleaded malice and that "under the circumstances of this case, discovery is necessary to allow [Candidate] to explore [County Sheriff's] knowledge and motivation for making the alleged defamatory statements.

* Although not all public employees are public officers, all public officers are public employees.

** In addition to a public officer or employee claiming "absolute immunity", under appropriate circumstances the individual might claim Sovereign Immunity, Qualified Immunity, Use Immunity, Transaction Immunity, Derivative Immunity or  Qualified Privilege in the course of litigation and, or, an administrative hearing. In addition, in Filarsky v. Delia, 132 S.Ct. 1657, the United States Supreme Court held that a private attorney retained by a public entity to assist in conducting an official investigation into potential wrong­doing was entitled to seek the protection of qualified immunity as the common law does not draw any distinction between a public employee and a private attorney in this regard.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_05733.htm