This was originally posted on the SGR Blog.
Were Words Protected by Common Interest Privilege?
Stuart Bass, a Hofstra University professor, alleged that he was defamed by another Hofstra professor, Glenn Vogel, and a former Hofstra student, Marium Chubinidzhe. They moved to dismiss on the grounds that the complaint failed to properly detail the alleged defamatory statements and because their actions, in all events, were shielded by the “common interest” privilege.
The complaint alleged that Bass and Vogel are both Professors of Legal Studies at Hofstra’s business school. Bass has taught multiple “double-section” classes—i.e., classes attended by more than 55 students—which are highly coveted by the faculty because the remuneration for teaching such classes is higher than teaching a standard class size. Vogel wanted to teach such classes, but was not assigned any. Vogel resented Bass as a result, and bad-mouthed him to students, including Chubinidzhe (a Hofstra undergraduate alumnus and Hofstra law student), with the intent to cause the students to complain about Bass so that Bass would no longer receive the coveted assignments. Among the statements Vogel made to students was that Bass was arrested for DUI, lost his license, and had a student drive him to and from the school’s campus. That statement was made to Chubinidzhe on or about August 28, 2019.
Chubinidzhe sent an email to the Dean of the business school the next day, August 29, which repeated the accusation concerning Bass’ driver’s license and that Bass had a student drive him to and from school. Chubinidzhe also accused Bass of canceling classes on a regular basis, ending most classes early and of being late to every class, notwithstanding that he was never her professor. Chubinidzhe also complained that Bass was assigned to teach larger sections instead of other “more dynamic and professional instructors.” The exact relationship between Vogel and Chubinidzhe was unclear from the pleading.
Vogel and Chubinidzhe asserted that Bass has failed to properly particularize the defamatory statements. But Bass had specified that they falsely stated that he had a student drive him to and from class because Bass lost his license as a result of a DUI arrest and further identified when the statements took place and to whom (Vogel: to at least Chubinidzhe on August 28, 2019; and Chubinidzhe: to the Dean in an email on August 29). The allegations adequately gave notice to Vogel and Chubinidzhe of the occurrences intended to be proven and plead all of the elements of defamation.
They next argued that the complaint must be dismissed because Vogel and Chubinidzhe were protected by the “common interest” privilege. But while they might ultimately prove to be correct, the defense was premature given the complaint’s allegations.
A qualified privilege extends to a communication made by one person to another upon a subject in which both have an interest. A communication, even though defamatory, may be privileged if it is fairly made by a person in the discharge of some public or private duty, legal or moral, or in the conduct of his, own affairs, in a matter where his interest is concerned. The privilege does not apply where the plaintiff can demonstrate that the communication was not made in good faith, but was motivated solely by either common law malice—spite or ill-will—or constitutional malice, i.e., with knowledge that the statement was false or with reckless disregard of the truth.
Arguably, Vogel, Chubinidzhe and the Dean all had a common interest in upholding the academic reputation and the integrity of the business school. But whether the common interest privilege applied to statements made to and by Chubinidzhe, who was a former student of the business school, was a closer question. And the qualified privilege defense usually presented a jury question. But the Court did not reach that issue because it was sufficiently alleged in the complaint that Vogel and Chubindzhe made the statements with malice. Bass alleged that they were motivated by spite, jealousy and self-interest, not out of concern for the school. Bass had no evidentiary burden to support his allegations in opposition to a motion to dismiss.
The motion by Vogel and Chubindzhe to dismiss Bass’ complaint was denied.