In the area of qualified privilege, a showing of malice required for a forfeiture of the privilege is not presumed but is a matter for proof by a plaintiff, and evidence of lack of malice may be introduced to sustain the privilege in the face of attack upon it, as well as in mitigation of damages should the privilege fall. Moreover, if evidence of what a defendant publishes concerning others is to be received as evidence of the defendant's state of mind, and intent, and as bearing upon the presence or absence of actual malice, the defendant is not to be foreclosed from a showing of the defendant's sources of information with respect thereto and the defendant's grounds therefor.
Appellants, reporters, newspaper, and publisher, printed articles which charged appellee superintendent with fraud, corruption, protection of criminals, manipulation of liquor licenses, perjury, trickery, and deceit. Thereafter, appellee brought a libel action, claiming that the charges were false, that appellants had known the charges were false, and that the charges had been published with malicious intent. When the trial court found that appellants had committed libel, appellants sought review, and the court reversed. In addressing the contention that appellants' public responsibility to expose governmental wrongdoings had given appellants a qualified privilege, the court held the trial court had erred by submitting the question of a qualified privilege to the jury and by refusing to charge the jury that appellant had been protected by a qualified privilege as a matter of law.
Did the external circumstances surrounding the publication give rise to a privileged occasion?
In making the determination as to the privilege of the occasion, the malice charged by the plaintiff is not considered. The court held (in accordance with the great weight of authority) in Westerhouse v.DeWitt, supra , 299, stating that "the question of privilege is to be determined by the occasion and not the language used." In Garn v.Lockard , 108 Mich 196, quoting an earlier case, we had held similarly, stating that "'The occasion determines the question of privilege. The language is only proper to be considered in connection with the question of malice.'" It was there insisted, on behalf of plaintiff, that there was no question of privilege in the case, since "the publications charge the plaintiff with criminal conduct, and an intentional neglect of his duties as sheriff."
In view of our remand for new trial a caveat should be observed. With respect to unprivileged defamation, malice in law is implied. "The existence of ill will or the absence of honest belief remains important where the exercise of a qualified privilege is in question, and it may affect the measure of damages to be imposed, particularly as to punitive damages, but it is not at all essential to liability in the first instance." Thus we have held, in a case not involving privilege, that the fact that defendant merely repeated defamatory matter, current in the community, that he believed to be true, went only to mitigation of damages. Here, however, we are in the area of qualified privilege. The showing of malice required for the forfeiture of the privilege is not presumed but is a matter for proof by the plaintiff, and evidence of lack of malice (e.g ., source and bases of information) may be introduced to sustain the privilege in the face of attack upon it, as well as in mitigation of damages should the privilege fall. Moreover, if evidence of what defendants published concerning others is to be received as evidence of their state of mind, and intent, and as bearing upon the presence or absence of actual malice, it follows from what has been held that they are not to be foreclosed from a showing of their sources of information with respect thereto and their grounds therefor.