SAY UNTO OTHERS…

Timothy M. Burke, Manley & Burke

A recent decision by an Indiana Court of Appeals underscores the rights of students to be free from defamation by their fellow students. ¹

After his proposal of marriage was rejected, Angus Owens, a member of Tau Kappa Epsilon at Wabash College, sent a letter to all fraternity presidents on campus suggesting that the former object of his affection may have given him and perhaps others a sexually transmitted disease. Angus was specific in identifying by name his former girlfriend and one of her close friends when he suggested that the two of them “may have created an epidemic.” The letter urged the fraternity presidents to call a meeting and “warn your brothers.”

When Angus was sued for defamation, he claimed the defense of qualified privilege arguing that he was simply trying to warn fraternity presidents of a potential health risk to fraternity members.

The court noted that “The essential elements of the defense of qualified privilege are good faith, an interest to be upheld, a statement limited in its scope to this purpose, a proper occasion, and publication in a proper manner to the appropriate parties only.” The court had little difficulty given the nasty tone of Angus’ letter finding that it was not written in good faith. The court also noted that when Angus’ deposition was taken prior to trial and again during his testimony at trial, he admitted he had no good faith basis to believe that the woman who sued him had given him an STD, had an STD herself, or that he was, in fact, treated as he had claimed in his letter, for an STD by a campus doctor.

Not surprisingly, the jury found for the woman and awarded $2,700.00 in punitive damages. The trial judge also ultimately awarded her attorney’s fees of $16,000.00.

The point of this case is twofold. First, there can he a qualified privilege for a member of the fraternity to report facts to others which he or she in good faith believes about another student. For example, a member of a sorority may have a qualified privilege to stand in front of her chapter and recite facts which she in good faith believes to be true that suggest that another member of her chapter has been engaged in the illegal sale or use of drugs in the sorority house. That qualified privilege may extend to communications to appropriate other officials, for example, a national officer, college disciplinary board, or law enforcement officials.

Secondly, a qualified privilege may be lost when the information is not reported in good faith, or is passed along to those people who may simply have idle curiosity and have no need to know or power to act upon the information provided. That is why, for example, when an individual is expelled from a fraternity for breaking fraternity rules, information about the dismissal and the conduct which led to it should not be widely discussed. In short, fraternity disciplinary matters should certainly he kept private and  not be the subject of idle gossip around campus. Doing so serves no good purpose and creates the possibility of a defamation or breach of privacy lawsuit

¹ Owens v. Schoenberger (June 25, 1997), Ind. App. LEXIS 773.