GA Code § 51-5-8 (2021)
2021 Georgia Code|Title 51 - Torts|Chapter 5 - Libel and Slander|§ 51-5-8. Absolute Privilege of Allegations in Pleadings

 All charges, allegations, and averments contained in regular pleadings filed in a court of competent jurisdiction, which are pertinent and material to the relief sought, whether legally sufficient to obtain it or not, are privileged. However false and malicious such charges, allegations, and averments may be, they shall not be deemed libelous.   (Civil Code 1895, § 3842; Civil Code 1910, § 4438; Code 1933, § 105-711.)   Law reviews.   - For article, "Defamation Liability for Attorney Speech: A Policy-Based and Civility-Oriented Reconsideration of the Absolute Privilege for Attorneys," see 10 Ga. St. U.L. Rev. 431 (1994). For annual survey article discussing tort law, see 51 Mercer L. Rev. 461 (1999). For annual survey of construction law, see 56 Mercer L. Rev. 109 (2004). For annual survey on trial practice and procedure, see 61 Mercer L. Rev. 363 (2009). For comment on Taliferro v. Sims, 187 F.2d 6 (5th Cir. 1951), see 14 Ga. B. J. 103 (1951). For comment on Dixie Broadcasting Corp. v. Rivers, 209 Ga. 98, 70 S.E.2d 734 (1952), see 15 Ga. B. J. 81 (1952). For case comment, "Yost v. Torok and Abusive Litigation: A New Tort to Solve an Old Problem," see 21 Ga. L. Rev. 429 (1986). For comment, "Lee v. Dong-A Ilbo: Use of Official Report Privilege to Protect Defamatory Statements in Press Account Based on Foreign Government Report," see 23 Ga. L. Rev. 275 (1988).   JUDICIAL DECISIONS    Former Code 1933, § 105-711 (see now O.C.G.A. § 51-5-8) provided for an absolute privilege in civil cases, while the privileges provided for in former Code 1933, §§ 105-704 and 105-709 (see now O.C.G.A. § 51-5-7) were conditional. Savannah News-Press, Inc. v. Hartridge, 110 Ga. App. 203, 138 S.E.2d 173 (1964).   Court of competent jurisdiction.    - State court was competent to adjudicate an action brought by the Georgia Higher Education Assistance Corporation on a note given for a federally funded student loan; thus, the complainant was privileged against a counterclaim seeking damages for libel, slander, and perjury. Garrett v. Georgia Higher Educ. Assistance Corp., 217 Ga. App. 415, 457 S.E.2d 677 (1995).   Commission filings.    - Statements in a request to investigate a real estate brokerage applicant filed with the Real Estate Commission pursuant to O.C.G.A. § 43-40-27 are entitled to absolute privilege under O.C.G.A. § 51-5-8. Skoglund v. Durham, 233 Ga. App. 158, 502 S.E.2d 814 (1998).    Privilege extends to filing of notice of lis pendens. Ferguson v. Atlantic Land & Dev. Corp., 248 Ga. 69, 281 S.E.2d 545 (1981).    After the purchasers requested specific performance of a contract requiring the property involved to be sold to them, the property was "directly involved," lis pendens was proper, the pleadings were privileged, and its filing was simply notice of the suit, not defamation of the title. Panfel v. Boyd, 187 Ga. App. 639, 371 S.E.2d 222 (1988).    Privilege inapplicable to improperly filed lis pendens. See South River Farms v. Bearden, 210 Ga. App. 156, 435 S.E.2d 516 (1993).    Trial court erred in granting partial summary judgment to a limited liability company (LLC) and the company's member on a creditor's slander of title claim because the act of the LLC and member of sending copies of a notice of lis pendens and complaint to a bank did not fall under the absolute privilege contained in O.C.G.A. § 51-5-8; the lis pendens was not valid because a prior action the LLC and member filed against a debtor, and the interests asserted therein, did not involve the real property at issue. McChesney v. IH Riverdale, LLC, 307 Ga. App. 77, 704 S.E.2d 244 (2010).   Privilege inapplicable when lis pendens invalid.    - Trial court erred in granting a limited liability company and the company's members summary judgment in an owner's action for slander of title, tortious interference with contract, and tortious interference with economic opportunities because the act of sending copies of a notice of lis pendens on the owner's property and a complaint against the owner to a bank did not fall under the absolute privilege of O.C.G.A. § 51-5-8 since the lis pendens was not valid. Meadow Springs, LLC v. IH Riverdale, LLC, 307 Ga. App. 72, 704 S.E.2d 239 (2010).   Proposed order was privileged.    - A proposed order prepared by a party in the course of a judicial proceeding at the direction of the judge is absolutely privileged as an official court document. Williams v. Stepler, 227 Ga. App. 591, 490 S.E.2d 167 (1997).   Counterclaim for slander dismissed.    - Complaint was without merit because the slander of title counterclaims was based on statements made by the defendant in the defendant's complaint and notice of lis pendens, which are privileged. Alcovy Properties, Inc. v. MTW Inv. Co., 212 Ga. App. 102, 441 S.E.2d 288 (1994), appeal dismissed, 223 Ga. App. 230, 477 S.E.2d 395 (1996), overruled on other grounds by Coen v. Aptean, Inc., 2020 Ga. LEXIS 103 (Ga. 2020).   Lien filing privileged.    - Contractor's filing of a lien and action to enforce the lien were privileged under O.C.G.A. § 51-5-8. Eurostyle, Inc. v. Jones, 197 Ga. App. 188, 397 S.E.2d 620 (1990).    While liens were improperly filed by a supplier, the property owner failed to show that the statements in the lien notices were false; further, the trial court could also have found that the liens were privileged under O.C.G.A. § 51-5-8 and, thus, dismissal of the owner's slander of title action was proper. Roofing Supply of Atlanta, Inc. v. Forrest Homes, Inc., 279 Ga. App. 504, 632 S.E.2d 161 (2006).    Summary judgment was properly granted to real property buyers in an action by the sellers, alleging slander of title under O.C.G.A. § 51-9-11, as the sellers failed to assert actionable claims when lis pendens filed against the property were proper and privileged under O.C.G.A. § 51-5-8; further, any failure to remove or properly mark the lis pendens pursuant to O.C.G.A. § 44-14-612 after the sellers voluntarily dismissed the claim did not form the basis of a slander of title claim against the buyers. Exec. Excellence, LLC v. Martin Bros. Invs., LLC, 309 Ga. App. 279, 710 S.E.2d 169 (2011).    The libel of a suit being filed is no libel at all. HFC v. Gilley, 167 Ga. App. 195, 306 S.E.2d 85 (1983).    All allegations made in pleadings are absolutely privileged, provided the allegations are material and relevant to relief sought, and the court has jurisdiction to grant that relief. "Absolute" means at all times and without any exceptions. It means that the law has decreed that there can be no damages ever for such allegations. Dixie Broadcasting Corp. v. Rivers, 209 Ga. 98, 70 S.E.2d 734 (1952), later appeal, 88 Ga. App. 131, 76 S.E.2d 229 (1953).    While this section does not use the term "absolute privilege," Georgia courts have said that it is recognized as a part of law of state. Fedderwitz v. Lamb, 195 Ga. 691, 25 S.E.2d 414 (1943).    Characteristic feature of absolute privilege is that question of malice is not open; all inquiry into good faith is closed. Fedderwitz v. Lamb, 195 Ga. 691, 25 S.E.2d 414 (1943).    Former Code 1933, §§ 105-710 and 105-711 (see now O.C.G.A. §§ 51-5-8 and51-5-9) must be construed together. Finish Allatoona's Interstate Right, Inc. v. Burruss, 131 Ga. App. 572, 206 S.E.2d 679 (1974).   Underlying principle upon which the doctrine of privileged communications rests is public policy.    - This is especially the case with absolute privilege, when the interest and the necessities of society require that the time and occasion of the publication or utterance, even though it be both false and malicious, shall protect the defamer from all liability to prosecution, for the sake of the public good. It rests upon the same necessity that requires the individual to surrender the individual's personal rights, and to suffer loss for the benefit of the common welfare. Happily for the citizen, this class of privilege is restricted to narrow and well-defined limits. Fedderwitz v. Lamb, 195 Ga. 691, 25 S.E.2d 414 (1943).    Action for libel founded on allegations in pleading fails to state claim upon which relief can be granted. Garrett v. DeWorken, 148 Ga. App. 656, 252 S.E.2d 81 (1979).    In testing pleadings, marks of absolute privilege are relevancy and materiality. When these are wanting, there is no privilege, or only conditional privilege at most. Finish Allatoona's Interstate Right, Inc. v. Burruss, 131 Ga. App. 572, 206 S.E.2d 679 (1974).    Existence of malice in making false allegations is immaterial. The code declares such allegations privileged. Dixie Broadcasting Corp. v. Rivers, 209 Ga. 98, 70 S.E.2d 734 (1952), later appeal, 88 Ga. App. 131, 76 S.E.2d 229 (1953).   Section does not bar abusive litigation claim.    - The privilege established under O.C.G.A. § 51-5-8 does not bar a claim for abusive litigation pursuant to O.C.G.A. § 51-7-80 et seq. Kluge v. Renn, 226 Ga. App. 898, 487 S.E.2d 391 (1997).   Section not applicable to liens.    - Although under this section, allegations in pleadings are privileged even if false and malicious, this rule would not apply to a lien as it is strictly construed and is not a pleading. Carl E. Jones Dev., Inc. v. Wilson, 149 Ga. App. 679, 255 S.E.2d 135 (1979).    A lien is not a pleading for purposes of O.C.G.A. § 51-5-8 and statements made within a surveyor's lien are not afforded absolute privilege until the lien becomes attached to a lawsuit and verified notice of the suit is filed under O.C.G.A. § 44-14-361.1, at which point, the lien becomes an act of legal, or judicial process, and achieves the formality, solemnity, and status of a sworn statement. Simmons v. Futral, 262 Ga. App. 838, 586 S.E.2d 732 (2003).   Libel claim by debtor untimely.    - Trial court did not err in entering judgment in favor of a company on a debtor's libel claim because the debtor's claim was untimely under O.C.G.A. § 9-3-33; the debtor's libel claim was based upon the company's allegations in a deficiency claim against the debtor, which was filed in January 2007, and the company's subsequent failure to dismiss the claim after the debt was discharged in bankruptcy in March 2008, and the debtor first asserted the claim in September 2009. Furthermore, the trial court did not err because the debtor's allegations were privileged under O.C.G.A. § 51-1-8 and, as such, were not libelous as a matter of law. Sevostiyanova v. Tempest Recovery Servs., 307 Ga. App. 868, 705 S.E.2d 878 (2011).   Privilege applicable to EEOC proceedings.    - Equal Employment Opportunity Commission (EEOC) proceedings were quasi-judicial in nature, thus, the former employers' statements to the EEOC in response to the former employee's EEOC charge were absolutely privileged under O.C.G.A. § 51-5-8 and the employee's defamation claim failed on the employers' motion for summary judgment. Collins v. Onyx Waste Servs. of N. Am., LLC, F. Supp. 2d (M.D. Ga. Dec. 20, 2005).    This section protects statements in affidavit impeaching the credit of a person seeking an attachment. Conley v. Key, 98 Ga. 115, 25 S.E. 914 (1896).   Blog and social media advertisement not privileged.    - Non-profit organization's statements accusing an attorney of extorting the attorney's clients were not privileged because the statements appeared on the organization's blog post and social media advertisement and the attorney made a prima facie case that the statements were not made in good faith. ACLU v. Zeh, 355 Ga. App. 731, 845 S.E.2d 698 (2020).   Quotations from pleadings conditionally privileged.    - A letter sent by the defendant bank to its shareholders, which letter quoted from the bank's verified answer to the plaintiff's original complaint, was not absolutely privileged since the letter itself was not a pleading; the publishing of quotations from pleadings in such a letter is protected only by a conditional privilege. O'Neal v. Home Town Bank, 237 Ga. App. 325, 514 S.E.2d 669 (1999).   Disclosure of promissory note with borrower's social security number attached to complaint was privileged.    - A borrower could not recover against a lender for invasion of privacy or violation of the Gramm-Leach-Bliley Act, 15 U.S.C. § 6801 et seq., based on the lender's attaching the note on which it sought to recover, which contained the borrower's Social Security number, to its complaint. The pleading was privileged under O.C.G.A. § 51-5-8. Finnerty v. State Bank & Trust Co., 301 Ga. App. 569, 687 S.E.2d 842 (2009).    There is no privilege as to judicial proceedings when newspaper report of such proceedings is not accurate and correct, or when the report is not done in good faith but with an express desire to vent "private malice" on another, even though, on its face, the article shows that the reporter was either merely quoting from the court petition verbatim or was repeating the substance of the allegations thereof. Shiver v. Valdosta Press, 82 Ga. App. 406, 61 S.E.2d 221 (1950).    To qualify for the privilege as to judicial proceedings, a newspaper report of such proceedings must present fully, fairly and accurately an impartial account of the proceedings. Although it must be accurate, at least with regard to all material matters, a substantially accurate report may be privileged as mere inaccuracies not affecting materially the purport of the article are immaterial. It is not necessary that the report be verbatim, and it may consist of an abridged or condensed statement, provided such statement is a fair one. Shiver v. Valdosta Press, 82 Ga. App. 406, 61 S.E.2d 221 (1950).   In camera summarization of evidence.    - Allegedly slanderous statement made in an attorney's in camera summarization of relevant evidence during the course of a federal court trial, while not a pleading within the meaning of O.C.G.A. § 51-5-8, was nonetheless absolutely privileged. Bell v. Anderson, 194 Ga. App. 27, 389 S.E.2d 762 (1989).    Allegations made in recall petitions are not absolutely privileged, but are only conditionally privileged as "comments upon the acts of public men in their public capacity and with reference thereto." Davis v. Shavers, 225 Ga. App. 497, 484 S.E.2d 243 (1997), aff'd, 269 Ga. 75, 495 S.E.2d 23 (1998).   Petition for appointment of guardian.    - Statements contained in a petition for appointment of a guardian were privileged. Cleveland v. Williamson, 194 Ga. App. 476, 391 S.E.2d 22 (1990).   Privilege applied in tortious interference with contract action.    - Any statements attributed to the defendant by the press, which were taken from court documents, could not provide a basis for a claim of tortious interference with contract. Phillips v. MacDougald, 219 Ga. App. 152, 464 S.E.2d 390 (1995).   Attorney's letter not privileged.    - Alleged libelous statements contained in a letter from the defendant's attorney to appraisers who were valuing the shareholder's stock upon resignation were not protected under O.C.G.A. § 51-5-8. Sparks v. Ellis, 205 Ga. App. 263, 421 S.E.2d 758, cert. denied, 205 Ga. App. 901, 421 S.E.2d 758 (1992).   Letter from accounting firm to controller's employer not privileged.    - With regard to a controller's claims for defamation and tortious interference against an accounting/auditing firm that wrote a letter to the controller's employer that resulted in the controller's termination from employment, the trial court erred by dismissing the complaint after concluding that the alleged defamatory statements were inactionable privileged communications that had not been published since the controller sufficiently alleged malice, the communications between the accounting/auditing firm and the employer were conditionally privileged under O.C.G.A. § 51-5-7, and the controller sufficiently alleged publication of the statements. Saye v. Deloitte & Touche, LLP, 295 Ga. App. 128, 670 S.E.2d 818 (2008).    In an action for nonpayment of a bill, a copy of the bill which the plaintiff doctor attached to the complaint was clearly both relevant and material to the plaintiff doctor's suit. Garner v. Roberts, 238 Ga. App. 738, 520 S.E.2d 255 (1999).   Slander of title claim involving corporation.    - Trial court erred in granting partial summary judgment to a limited liability company (LLC) and the company's member on a creditor's slander of title claim on the ground that the filing and publication of the notice of lis pendens were privileged under O.C.G.A. § 51-5-7(3) because the LLC and member did not show that they had an interest to uphold in a commission such that they were entitled as a matter of law to the privilege set forth in O.C.G.A. § 51-5-7(3); a letter accompanying the transmission of the complaint and notice of lis pendens to a bank did not refer to a commission owed to either the LLC or the member but rather to one owed to another entity. McChesney v. IH Riverdale, LLC, 307 Ga. App. 77, 704 S.E.2d 244 (2010).   Application in criminal case.    - The defendant's malice murder and aggravated battery convictions were upheld on appeal, as the trial court did not err in introducing into evidence the pleadings filed in a civil lawsuit brought by the defendant against the victim and others, as the pleadings, albeit privileged, were introduced to show the defendant's motive or state of mind. Taylor v. State, 282 Ga. 44, 644 S.E.2d 850, cert. denied, 552 U.S. 950, 128 S. Ct. 384, 169 L. Ed. 2d 263 (2007).   Arrest warrants.    - Trial court committed no error in dismissing the defamation claim predicated on the allegedly false statements by the defendant made in the arrest warrant application and the warrant application hearing, but erred in dismissing the claim to the extent that the claim could be construed as alleging that the defendant communicated unprivileged, defamatory statements to third parties outside the context of the warrant application proceedings. Renton v. Watson, 319 Ga. App. 896, 739 S.E.2d 19 (2013).   Section not applicable to fraud claim.    - Trial court erred by granting summary judgment to an estate executor in a suit asserting fraud and other claims brought by two siblings as the trial court incorrectly determined that the privileges set forth in O.C.G.A. §§ 51-5-7(2) and51-5-8 applied to the fraud claims and neither collateral estoppel nor res judicata barred the action since a prior probate court proceeding did not involve the same issues. Further, the probate court would have had no jurisdiction over the fraud and intentional interference with a gift claims. Morrison v. Morrison, 284 Ga. 112, 663 S.E.2d 714 (2008).    Cited in Gibbs v. Bank of Tifton, 21 Ga. App. 653, 94 S.E. 827 (1918); Bennett v. Bellinger, 40 Ga. App. 557, 150 S.E. 566 (1929); White v. Holderby, 192 F.2d 722 (5th Cir. 1951); Jordan v. Burger King Corp., 124 Ga. App. 652, 185 S.E.2d 577 (1971); Berger v. Shea, 150 Ga. App. 812, 258 S.E.2d 621 (1979); Fiske v. Stockton, 171 Ga. App. 601, 320 S.E.2d 590 (1984); Henson v. American Family Corp., 171 Ga. App. 724, 321 S.E.2d 205 (1984); Stewart v. Walton, 254 Ga. 81, 326 S.E.2d 738 (1985); Rothstein v. L.F. Still & Co., 181 Ga. App. 113, 351 S.E.2d 513 (1986); Watkins v. Laser/Print-Atlanta, Inc., 183 Ga. App. 172, 358 S.E.2d 477 (1987); Diamond v. American Family Corp., 186 Ga. App. 681, 368 S.E.2d 350 (1988); South River Farms v. Bearden, 210 Ga. App. 156, 435 S.E.2d 516 (1993); Hightower v. Kendall Co., 225 Ga. App. 71, 483 S.E.2d 294 (1997); Clark v. Clark, 969 F. Supp. 1319 (S.D. Ga. 1997); Sanders v. Brown, 257 Ga. App. 566, 571 S.E.2d 532 (2002); Chappuis v. Ortho Sport & Spine Physicians Savannah, LLC, 305 Ga. 401, 825 S.E.2d 206 (2019).   RESEARCH REFERENCES   Am. Jur. 2d.   - 50 Am. Jur. 2d, Libel and Slander, § 280 et seq.   C.J.S.   - 53 C.J.S., Libel and Slander, §§ 119, 121 et seq.   ALR.    - Proceeding to obtain search warrant as judicial proceeding within rule of privilege in libel and slander, 58 A.L.R. 723.    Libel and slander: privilege as to allegations in judicial proceedings contrary to facts as previously adjudicated, 136 A.L.R. 1414.    Libel and slander: absolute privilege in respect of pleadings or other judicial matters as available to one who is neither a party, an attorney for a party, nor a witness, but who causes the inclusion of the defamatory matter, 144 A.L.R. 633.    Libel and slander: doctrine of privilege or of fair comment and criticism as applicable to statement or publication imputing impropriety or dishonesty in bringing or defending civil action or proceeding, 148 A.L.R. 1173.    Libel and slander: lack of jurisdiction as destroying privilege of defamatory allegations or statements in judicial proceedings, 158 A.L.R. 592.   Libel and slander: statements in briefs as privileged, 32 A.L.R.2d 423.   Libel and slander: privilege in connection with proceedings to disbar or discipline attorney, 77 A.L.R.2d 493.   Libel and slander: application of privilege attending statements made in course of judicial proceedings to pretrial deposition and discovery procedures, 23 A.L.R.3d 1172.   Relevancy of matter contained in pleading as affecting privilege within law of libel, 38 A.L.R.3d 272.   Libel and slander: reports of pleadings as within privilege for reports of judicial proceedings, 20 A.L.R.4th 576.