Duhaime's Law Dictionary

Common Law Malice Definition:

A species of malice relevant to defamation proceedings, which focuses on the defendant's feelings towards the plaintiff, and which may give rise to punitive damages.

Related Terms: Malice

In Army Aviation, Justice Smoak of the United States District Court (Florida) adopted these words:

"Common law malice focuses on the defendant's feelings toward the plaintiff, unlike express malice which concerns the defendant's knowledge of the truth or falsity of a publication....

"Florida is one of those states that requires a form of common law malice to sustain an award for punitive damages.... In order to award punitive damages in a libel action, ill will, hostility or air evil intention to defame and injure, must be present. While the Florida law is not without ambiguity, it appears that proof of this type of malice may come from two sources: the publication itself and extrinsic evidence concerning the defendant's feelings toward the plaintiff. Id. Therefore, a jury instruction on the common law malice necessary to support punitive damages should focus the jury's attention on the defendant's feelings of ill will toward the plaintiff, considering the evidence produced at trial and the character of the publication itself."

This distinction was followed in Ello, along with an explanatory preamble which provides the context in which an allegation of common law malice is relevant:

"[A] conditional, or qualified, privilege extends to a communication made by one person to another upon a subject in which both have an interest. In the employment context, the qualified privilege is recognized as protecting the free flow of information. Communications regarding alleged employee misconduct are covered by the privilege. However, a defendant can forfeit the privilege by making a false, defamatory statement with malice of either the common-law or constitutional variety.

"Common-law malice is based on the traditional concept of spite or ill will, while constitutional malice or actual malice refers to publication of false material with knowledge of its falsity, or a high degree of awareness of the falsity."


  • Army Aviation Heritage Foundation and Museum v. Buis, 504 F. Supp. 2d 1254 (2007)
  • Ello v. Singh, 531 F. Supp. 2d 552 (U.S. District Court, 2007)

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