In the Supreme Court of Georgia



                                           Decided:       July 8, 2016


                   S16A0013. COTTRELL v. SMITH et al.


      HINES, Presiding Justice.

      This is an appeal by plaintiff, Stanley W. Cottrell, Jr. (“Cottrell”), from the

grant of judgment notwithstanding the verdict (“JNOV”) and earlier grants of

directed verdicts in this action alleging defamation and related torts, and

potentially implicating the constitutionality of portions of the Georgia Computer

Systems Protection Act (“GCSPA”), OCGA § 16-9-90 et seq. The suit against

five defendants: Glenn and Marian Crocker (“Crockers”), Hugh Johnson

(“Johnson”), Peggy Smith (“Peggy”), and Karen Smith (“Karen”), hereinafter

collectively “Defendants,” arises out of online postings and other

communications by Defendants about Cottrell. For the reasons which follow,

we affirm.

             A brief overview of the facts is in order. Cottrell for many years

engaged in a number of solo running exhibitions with a Christian evangelical
emphasis, some of which have been portrayed in the media, and was

subsequently involved in various multi-level marketing endeavors, executive

leadership positions, and motivational speaking. Cottrell’s notoriety grew along

with media controversy relating to his character, which questioned the

authenticity and integrity of his claims and achievements. The Crockers worked

for Cottrell planning two running exhibitions; Johnson was a long-time friend

of Cottrell’s who came to know some women with whom Cottrell was involved

outside of his marriage; Peggy is one of the women with whom Cotrell had an

extra-marital affair; and Karen is Peggy’s daughter-in-law. Karen located and

contacted several people she believed had information about Cottrell, including

the Crockers and Johnson. Karen and her husband created a “WordPress” blog

(the “Blog”) and posted stories based on this information, which portrayed

Cottrell as having a long history of misrepresentation and deception for personal

gain. Karen sent emails to a “list serve” group criticizing Cottrell and sharing

links to the Blog posts, and Peggy sent messages to multiple Cottrell Facebook

“friends” along the same lines.

      Cottrell filed the present suit alleging a conspiracy among Defendants and

a central claim of defamation with associated claims of invasion of privacy,

                                        2
intentional infliction of emotional distress, tortious interference with business

opportunities, breach of fiduciary duty, and violation of the GCSPA. The case

was tried before a jury, and at the conclusion of Cottrell’s case-in-chief, the

superior court directed verdicts in favor of Defendants as to the claims for

intentional infliction of emotional distress and violation of the GCSPA. The

superior court then also expressed doubt about the viability of the remaining

causes of action in light of the presented evidence but chose to allow such

claims to go to the jury, and determined if necessary, it would entertain a JNOV.

The jury returned a verdict on the defamation claim in favor of Cottrell and

against Peggy and Karen; a verdict in favor of Defendants on the claim of

tortious interference with business opportunities; a verdict in favor of Cottrell

and against Defendants on the claim of invasion of privacy; and a verdict in

favor of Cottrell and against Peggy and the Crockers on the claim of breach of

fiduciary duty. The jury did not award special damages, but awarded general

damages in the amount of $200,000, punitive damages in the amount of

$150,000, and $285,000 in litigation expenses and attorney fees.1 Judgment was

       1
        The jury did not find that the damages, which totaled $635,000, should be assessed jointly
and severally as to all the defendants, and apportioned the damages: $269,000 as to Peggy, $293,250
as to Karen, $24,250 as to each of the Crockers, and $24,250 as to Johnson.

                                                3
entered accordingly. Karen, Peggy, and Johnson filed post-trial motions for

JNOV, and in the alternative, for new trial. The superior court granted JNOV

and vacated the judgment entered on the jury’s verdicts.

                                 I. Directed Verdicts

      In reviewing the grant of a motion for a directed verdict, this Court applies

the “any evidence” test and construes the evidence in the light most favorable

to the losing party. Hood v. Smoak, 271 Ga. 86, 86-87 (516 SE2d 301) (1999).

      A.) GCSPA Claims. Cottrell alleged that Defendants’ conduct constituted

a violation or violations of Section 16-9-93.12 of the GCSPA, thereby giving

      2
          OCGA§ 16-9-93.1 provides:

      (a) It shall be unlawful for any person, any organization, or any representative of any
      organization knowingly to transmit any data through a computer network or over the
      transmission facilities or through the network facilities of a local telephone network for the
      purpose of setting up, maintaining, operating, or exchanging data with an electronic mailbox,
      home page, or any other electronic information storage bank or point of access to electronic
      information if such data uses any individual name, trade name, registered trademark, logo,
      legal or official seal, or copyrighted symbol to falsely identify the person, organization, or
      representative transmitting such data or which would falsely state or imply that such person,
      organization, or representative has permission or is legally authorized to use such trade name,
      registered trademark, logo, legal or official seal, or copyrighted symbol for such purpose
      when such permission or authorization has not been obtained; provided, however, that no
      telecommunications company or Internet access provider shall violate this Code section
      solely as a result of carrying or transmitting such data for its customers.
      (b) Any person violating subsection (a) of this Code section shall be guilty of a
      ma isdemeanor.

      (c) Nothing in this Code section shall be construed to limit an aggrieved party's right to
      pursue a civil action for equitable or monetary relief, or both, for actions which violate this
      Code section.

                                                4
him a cause of action under Section 16-9-93 (g) (1).3


      3
          OCGA § 16-9-93 provides:

      (a) Computer theft. Any person who uses a computer or computer network with knowledge
      that such use is without authority and with the intention of:
              (1) Taking or appropriating any property of another, whether or not with the intention
              of depriving the owner of possession;
              (2) Obtaining property by any deceitful means or artful practice; or
              (3) Converting property to such person's use in violation of an agreement or other
              known legal obligation to make a specified application or disposition of such
              property shall be guilty of the crime of computer theft.
      (b) Computer Trespass. Any person who uses a computer or computer network with
      knowledge that such use is without authority and with the intention of:
              (1) Deleting or in any way removing, either temporarily or permanently, any
              computer program or data from a computer or computer network;
              (2) Obstructing, interrupting, or in any way interfering with the use of a computer
              program or data; or
              (3) Altering, damaging, or in any way causing the malfunction of a computer,
              computer network, or computer program, regardless of how long the alteration,
              damage, or malfunction persists shall be guilty of the crime of computer trespass.
      (c) Computer Invasion of Privacy. Any person who uses a computer or computer network
      with the intention of examining any employment, medical, salary, credit, or any other
      financial or personal data relating to any other person with knowledge that such examination
      is without authority shall be guilty of the crime of computer invasion of privacy.
      (d) Computer Forgery. Any person who creates, alters, or deletes any data contained in any
      computer or computer network, who, if such person had created, altered, or deleted a tangible
      document or instrument would have committed forgery under Article 1 of this chapter, shall
      be guilty of the crime of computer forgery. The absence of a tangible writing directly created
      or altered by the offender shall not be a defense to the crime of computer forgery if a
      creation, alteration, or deletion of data was involved in lieu of a tangible document or
      instrument.
      (e) Computer Password Disclosure. Any person who discloses a number, code, password,
      or other means of access to a computer or computer network knowing that such disclosure
      is without authority and which results in damages (including the fair market value of any
      services used and victim expenditure) to the owner of the computer or computer network in
      excess of $500.00 shall be guilty of the crime of computer password disclosure.
      (f) Article not Exclusive. The provisions of this article shall not be construed to preclude the
      applicability of any other law which presently applies or may in the future apply to any
      transaction or course of conduct which violates this article.
      (g) Civil Relief; Damages.
              (1) Any person whose property or person is injured by reason of a violation of any

                                                 5
Cottrell contends that the superior court erred in directing a verdict in favor of

Defendants on such claims because there was evidence that Defendants’ conduct

violated § 16-9-93.1 and § 16-9-93, and because the court mistakenly relied

upon ACLU v. Miller, 977 F.Supp. 1228 (N.D. Ga.,1997) to find that OCGA §

16-9-93.1 is unconstitutional.

      In ACLU v. Miller, the plaintiff internet users brought an action for

declaratory and injunctive relief challenging the constitutionality of OCGA §

16-9-93.1, and the District Court granted plaintiffs’ motion for a preliminary

injunction after concluding, inter alia, that the statute is unconstitutionally


             provision of this article may sue therefor and recover for any damages sustained and
             the costs of suit. Without limiting the generality of the term, “damages” shall include
             loss of profits and victim expenditure.
             (2) At the request of any party to an action brought pursuant to this Code section, the
             court shall by reasonable means conduct all legal proceedings in such a way as to
             protect the secrecy and security of any computer, computer network, data, or
             computer program involved in order to prevent possible recurrence of the same or a
             similar act by another person and to protect any trade secrets of any party.
             (3) The provisions of this article shall not be construed to limit any person's right to
             pursue any additional civil remedy otherwise allowed by law.
             (4) A civil action under this Code section must be brought within four years after the
             violation is discovered or by exercise of reasonable diligence should have been
             discovered. For purposes of this article, a continuing violation of any one subsection
             of this Code section by any person constitutes a single violation by such person.
      (h) Criminal Penalties.
             (1) Any person convicted of the crime of computer theft, computer trespass,
             computer invasion of privacy, or computer forgery shall be fined not more than
             $50,000.00 or imprisoned not more than 15 years, or both.
             (2) Any person convicted of computer password disclosure shall be fined not more
             than $5,000.00 or incarcerated for a period not to exceed one year, or both.

                                                6
overbroad and void for vagueness. It appears that the superior court based, at

least in part, its grant of a directed verdict on the GCSPA claims on its favorable

view of the analysis and holding in ACLU v. Miller.4 However, the superior

court need not have considered any such constitutional challenge because a

directed verdict was mandated in light of the statutory requirements of both

OCGA § 16-9-93 and OCGA § 16-9-93.1. Indeed, a trial court should first

resolve other questions regarding a statute before addressing an issue of

constitutionality. Deal v. Coleman, 294 Ga. 170, 171 (n.7) (751 SE2d 337)

(2013), citing Bd. of Tax Assessors v. Tom's Foods, 264 Ga. 309, 310 (444 SE2d

771) (1994). What is more, it is well-settled that this Court will not decide a

constitutional question if the decision in the appeal can be made upon other

grounds. Deal v. Coleman, at 171 (n.7). And, so it can in this case.

      Pretermitting any questions as to the correctness and scope of the superior

court’s ruling in regard to the constitutionality of any portion of the GSPCA and




      4
          The superior court stated in relevant part:

                 I’m just going to follow that federal case. I thought it was just right all over
                 it. . . . That’s a Northern District case, but it’s a constitutional type issue . . .
                 . I just like the reasoning. I don’t think you can argue me out of that one.

                                                      7
of Cottrell’s preservation of a constitutional issue for appeal,5 the direction of

a verdict on the GSPCA claims was demanded based upon the evidence, or

rather the lack thereof, in regard to the alleged statutory violations. Cottrell

variously argues that there was evidence of computer theft (OCGA §16-9-93

(a)), computer trespass (OCGA §16-9-93 (b)), computer invasion of privacy

(OCGA §16-9-93 (c)) and computer forgery (OCGA § 16-9-93 (d)), and recites

a litany of online actions by Defendants in support thereof; however, none of the

cited conduct demonstrates, inter alia, the express specific criminal intent

required in subsections (a), (b), ( c ), and (d).6 There was simply a failure of the

evidence in regard to the GCSPA claims.

       B.) Intentional Infliction of Emotional Distress. In order to sustain a claim

of the intentional infliction of emotional distress, four elements must be present:

       (1) The conduct must be intentional or reckless; (2) The conduct


       5
         While the superior court initially declined to let counsel for Cottrell give argument regarding
its apparent ruling about the constitutionality of OCGA§ 16-9-93.1, it later permitted counsel to
argue about Cottrell’s claims in regard to that statute as well as OCGA§ 16-9-93; however, counsel
principally argued the evidence in light of the provisions of OCGA§ 16-9-93, and in fact, expressly
stated that he was not asking the superior court to “revisit” the constitutional ruling.
       6
         The intent in subsection (d) is stated in terms of a person’s creation, alteration, or deletion
of data contained in a computer or computer network if such conduct would constitute the
commission of the crime of forgery under Title 16, Chapter 9, Article 1, which crime requires the
specific intent to defraud.

                                                   8
      must be extreme and outrageous; (3) There must be a causal
      connection between the wrongful conduct and the emotional
      distress; and (4) The emotional distress must be severe.

Northside Hosp.v. Ruotanen, 246 Ga. App. 433, 435 (541 SE2d 66) (2000).

Whether a claim rises to the level of extreme and outrageous conduct necessary

to support a cause of action for the intentional infliction of emotional distress

is a question of law. Blockum v. Fieldale Farms Corp., 275 Ga. 798, 801 (3)

(573 SE2d 36) (2002), citing Yarbray v. Southern Bell Tel. &c. Co., 261 Ga.

703, 706 (2) (409 SE2d 835) (1991). In assessing such conduct,

      it has not been enough that the defendant has acted with an intent
      which is tortious or even criminal, or that he has intended to inflict
      emotional distress, or even that his conduct has been characterized
      by malice, or a degree of aggravation that would entitle the plaintiff
      to punitive damages for another tort. Liability has been found only
      where the conduct has been so outrageous in character, and so
      extreme in degree, as to go beyond all possible bounds of decency,
      and to be regarded as atrocious, and utterly intolerable in a civilized
      community.


Northside Hosp.v. Ruotanen, supra at 435. The standard was plainly not met in

this case, including the showing of extreme emotional distress suffered by

Cottrell as a result of the Defendants’ actions.

      The superior court properly granted the requested directed verdicts at


                                        9
issue.

                                 II. JNOV

         In reviewing a grant of JNOV, this Court must determine whether there

was some evidence to support the jury's verdict or whether a consideration of all

of the evidence demanded a judgment notwithstanding the verdict. Keaton v.

A.B.C. Drug Co., 266 Ga. 385, 385-386 (467 SE2d 558) (1996).

         A.) Defamation. Cottrell’s claims of defamation implicate both libel and

slander. Libel is the “false and malicious defamation of another, expressed in

print, writing, pictures, or signs, tending to injure the reputation of the person

and exposing him to public hatred, contempt, or ridicule.” OCGA § 51-5-1.

Oral defamation constituting slander is of four categories:

         (1) Imputing to another a crime punishable by law; (2) Charging a
         person with having some contagious disorder or with being guilty
         of some debasing act which may exclude him from society; (3)
         Making charges against another in reference to his trade, office, or
         profession, calculated to injure him therein; or (4) Uttering any
         disparaging words productive of special damage which flows
         naturally therefrom.


OCGA § 51-5-4 (a). By the statutory express terms, the situation in category (4)

requires special damage to support an action; however, damage is inferred in the


                                         10
situations described in the remaining three categories. OCGA § 51-5-4 (b).

Indeed, such categories of slander have been engrafted into the libel statute, with

the result that libel in the nature of the first three categories of slander carries

with it the inference of damages. Dun & Bradstreet, Inc. v. Miller, 398 F.2d 218,

222 (n.5) (5th Cir. 1968).

      Because the jury in this case found no special damages, a verdict for

defamation is sustainable only if there was defamation per se, which would

include slander per se. See OCGA §§ 51-5-1 and 51-5-4; Dun & Bradstreet,

Inc. v. Miller, supra at 222.

      To be slander per se, the words are those which are recognized as
      injurious on their face - without the aid of extrinsic proof. Should
      extrinsic facts be necessary to establish the defamatory character of
      the words, the words may constitute slander, but they do not
      constitute slander per se. Thus, the court may not hunt for a strained
      construction in order to hold the words used as being defamatory as
      a matter of law, and the negative inference a hearer might take from
      the words does not subject the speaker to liability for slander per se.


Bellemead, LLC v. Stoker, 280 Ga. 635, 637-638 (631 SE2d 693) (2006)

(Internal citations and quotation marks omitted.).




                                        11
     Truth is a complete defense to alleged libel or slander. OCGA § 51-5-67;

Lucas v. Cranshaw, 289 Ga. App. 510, 512 (1) (659 SE2d 612) (2008). And,

     a defamation action will lie only for a statement of fact. This is
     because a statement that reflects an opinion or subjective
     assessment, as to which reasonable minds could differ, cannot be
     proved false. As a result, a plaintiff who claims that a published
     opinion defamed him will generally be unable to carry his burden
     of proving the essential element of falsity. Still, . . . [t]here is ... no
     wholesale defamation exception for anything that might be labeled
     opinion. An opinion can constitute actionable defamation if the
     opinion can reasonably be interpreted, according to the context of
     the entire writing in which the opinion appears, to state or imply
     defamatory facts about the plaintiff that are capable of being proved
     false.

Gettner v. Fitzgerald, 297 Ga. App. 258, 261 (677 SE2d 149) (2009), citing

Gast v. Brittain, 277 Ga. 340, 341 (589 SE2d 63) (2003). (Internal quotation

marks omitted.).

         Given the evidence at trial in this case, only two per se categories of

defamation could arguably apply: “[i]mputing to another a crime punishable by



     7
         OCGA § 51-5-6 states:

     The truth of the charge made may always be proved in justification of an alleged libel or
     slander.




                                            12
law” or “[m]aking charges against another in reference to his trade, office, or

profession, calculated to injure him therein.” OCGA § 51-5-4 (a) (1) & (3).

And, the requirements for slander per se apply to libel per se because, as noted,

the definition of slander in Georgia has been incorporated into the definition of

libel. Cmty. Newspaper Holdings, Inc. v. King, 299 Ga. App. 267, 270 (2) (682

SE2d 346) (2009).

      In regard to imputing a crime,

      [t]o constitute slander per se, ... the words at issue must charge the
      commission of a specific crime punishable by law. Where the plain
      import of the words spoken impute no criminal offense, they cannot
      have their meaning enlarged by innuendo.

Dagel v. Lemcke, 245 Ga. App. 243, 244 (1) (537 SE2d 694) (2000). Indeed,

the statement must give the impression that the crime is actually being charged

against the individual and couched in language as might reasonably be expected

to convey such meaning to a hearer of the statement; a vague statement or even

a derogatory one does amount to slander per se when a person cannot reasonably

conclude from what is said that the comments are imputing a crime to the

plaintiff. Taylor v. Calvary Baptist Temple, 279 Ga. App. 71, 73-74 (3) (630

SE2d 604) (2006).


                                       13
     As for defamation in regard to a trade, profession, or office,

     [t]he kind of aspersion necessary to come under this phase of the
     rule of slander per se must be one that is especially injurious to the
     plaintiff's reputation because of the particular demands or
     qualifications of plaintiff's vocation.... [T]he words must either be
     spoken of the plaintiff in connection with his calling or they must
     be of such a nature such as to charge him with some defect of
     character or lack of knowledge, skill, or capacity as necessarily to
     affect his competency successfully to carry on his business, trade,
     or profession.


Bellemead, LLC v. Stoker, supra at 637. Furthermore,

     [a]lthough statements disparaging a business' reputation within its
     trade may sometimes constitute libel per se, language imputing to
     a business or professional man ignorance or mistake on a single
     occasion and not accusing him of general ignorance or lack of skill
     is not actionable per se. A charge that plaintiff in a single instance
     was guilty of a mistake, impropriety or other unprofessional
     conduct does not imply that he is generally unfit.

Kin Chun Chung v. JP Morgan Chase Bank, N.A., 975 F. Supp. 2d 1333, 1349

(N.D. Ga. 2013)

     Certainly,

     some persons may hold positions with such pervasive fame or
     power that they are deemed public figures for all purposes, but more
     often an individual voluntarily injects himself or is drawn into a
     particular public controversy and thereby becomes a public figure
     for a limited range of issues. Whether a person is a public figure is
     a question of law that requires the court to review the nature and

                                      14
      extent of the individual's participation in the specific controversy
      that gave rise to the [alleged] defamation. . . . [A] three-part analysis
      [is] used . . . to determine whether an individual is a limited-
      purpose public figure. Under this analysis, a court must isolate the
      public controversy, examine the plaintiff's involvement in the
      controversy, and determine whether the alleged defamation was
      germane to the plaintiff's participation in the controversy.


Mathis v. Cannon, 276 Ga. 16, 22-23 (3) (573 SE2d 376) (2002) (Internal

quotation marks omitted.). With regard to a public figure,

      The standard of proof of actual malice . . . is extremely high; [it
      must be shown] by clear and convincing evidence that false and
      defamatory statements were published with actual malice. Actual
      malice in a constitutional sense is not merely spite or ill will, or
      even outright hatred; it must constitute actual knowledge that a
      statement is false or a reckless disregard as to its truth or falsity.
      Actual or constitutional malice is different from common law
      malice because knowledge of falsity or reckless disregard of the
      truth may not be presumed nor derived solely from the language of
      the publication itself. Reckless disregard requires clear and
      convincing proof that a defendant was aware of the likelihood he
      was circulating false information. Thus, it is not sufficient to
      measure reckless disregard by what a reasonably prudent man
      would have done under similar circumstances nor whether a
      reasonably prudent man would have conducted further
      investigation. The evidence must show in a clear and convincing
      manner that a defendant in fact entertained serious doubts as to the
      truth of his statements.


Atlanta Humane Soc. v. Mills, 274 Ga. App. 159, 165 (3) (618 SE2d 18) (2005)


                                         15
(Internal quotation marks and citations omitted.).

       Cottrell claims that the statements at issue constituted defamation per se,

and complains that although the superior court found him to be a limited

purpose public figure in the areas of running and Christian evangelism, in

granting JNOV the superior court erroneously applied the “clear and

convincing” evidence standard to every aspect of the defamation. However,

Cottrell properly was found to be a public figure in the spheres of running and

Christian evangelism. And contrary to Cottrell’s urging, the actual malice

standard should be applied to all statements at issue here because they all

potentially bear on Cottrell’s character, which is plainly germane to his Christian

evangelism.

Statements at Issue

       1.) A 2010 post on Karen's "You Shall Know the Truth" blog entitled "This
                                     8
Guy Needs to be Stopped."                This “Resnick” post, which is the focus of

       8
       The post reads in its entirety:
       You Shall Know The Truth
      “This Guy Needs To Be Stopped”
      Posted on September 19, 2010
      As told to me by Dr. Joseph Resnick.
********************************************..
      About 2 months ago Stan Cottrell befriended me on Facebook.
      I couldn't believe that he wanted to be my "friend" after everything he has done to me and

                                               16
Cottrell’s arguments on appeal in regard to defamation, contained information


     my family. I sent him an irate message letting him know I was coming after him.
     I had no idea he was trying to raise money for a worldwide run, or that he was taking
     money from unsuspecting women. I thought he was just involved in investment scams.
     My involvement with him began about 8 years ago thru his affiliation with BICO, Inc. I
     owned 50% of one of the company's subsidiaries. I also served as chief scientist and I
     developed new products for the company. Stan had been brought into BICO as a board
     member and then served as CEO after Fred Cooper stepped down.
     I had $8 million invested in the company and lost it all through fraud that was perpetrated
     by Stan and others at the company. Fred Cooper was the only one who was convicted of a
     crime. And his sentence was essentially a slap on the wrist.
     These people did more than take my money. They also stole from my children.
     My children own the holding company that owns my patents, and through the actions of
     unscrupulous lawyers my patents got tied up in the courts when BICO's lawyers filed for
     bankruptcy.
     Stan's job was to keep me at bay while they stole the patents. He participated in the theft
     of my technology.
     I developed encapsulation technology that uses biological agents to encapsulate oil I
     developed it for peaceful means, to help clean the environment. It was used to clean up oil
     from the Exxon Valdeze oil spill.
     Those who stole my technology are still trying to sell my products. They are attempting to
     weaponize my technology and sell it to other countries - they want to use it to deploy
     biological weapons. I have begun legal action against them for illegally using my patents
     and attempting to illegally export my products.
     I am willing to appear in any court - anytime, anywhere - and testify to what Stan did to
     me and my family. I hope he sues me for libel and slander so I can stand up in court and
     testify about what he has done.
     When I first met Stan he came under the guise of the Lord. He wanted to start business
     meetings at BICO with prayer. After I realized what he was really up to, that he spends lots
     of time thinking about how to separate people from their money, he told me, "If the Lord
     didn't want them sheared, he wouldn't have made them sheep."
     I worked hard for every penny I have ever had. I can't believe Stan Cottrell thinks he is
     entitled to the money others have earned through their own hard work.
     He has taken money from a lot of people, and it’s a shame that more of them are not willing
     to come forward about their experiences with him. It's a shame this has gone on for so long.
     Please express to your mother-in-law my condolences for her involvement with this guy, and
     my admiration for her willingness to come forward.
     This guy needs to be stopped.
     Dr. Joseph
     Resnick
     September 2, 2010

                                             17
told to Karen by Dr. Joseph Resnick, a biotechnology scientist who worked

with Cottrell at a company called BICO, where Cottrell was a CEO. It was there,

according to Resnick, where Cottrell "participated in the theft of[Resnick's]

technology." The post also contains, inter alia, Resnick's assertions, re-told by

Karen, that "I had $8 million invested in the company and lost it all through

fraud that was perpetrated by Stan and others at the company" and that Cottrell

"has taken money from a lot of people, and it’s a shame that more of them are

not willing to come forward about their experiences with him."

      To begin with, in regard to the claim that the comment about Cottrell

"participat(ing) in the theft of [Resnick's] technology" on its face is arguably per

se defamatory as imputing a crime, as the superior court found, much of the

objected-to content in the Resnick post is not properly characterized as

defamatory on the part of Karen. More significantly, there is the lack of

evidence of “actual malice” by Karen in connection with the post. Again, the

"actual malice" standard must be applied because the objectionable comments

are germane to Cottrell's public figure status as a Christian evangelist. Indeed,

“a publication is germane to a plaintiff’s participation in a controversy if it

might help the public decide how much credence should be given to the

                                        18
plaintiff." Atlanta Journal-Constitution v. Jewell, 251 Ga. App. 808, 820 (3) (c)

( 555 SE2d 175 ) (2002). Notably, the post itself makes reference to Cottrell's

evangelism ("When I first met Stan he came under the guise of the Lord. He

wanted to start business meetings at BICO with prayer.").

      As the superior court determined, the evidence relating to the Resnick

post, even when construed in favor of the verdict, fails to "clearly and

convincingly" demonstrate "actual malice" - that Karen published the Resnick

post with "reckless disregard" for whether it was true. Atlanta Humane Soc. v.

Mills, supra 165 (3). Karen testified that she became aware of a scathing

Facebook "message" by Resnick, whom she did not know, on a Cottrell

Facebook page created by the Crockers. In the message, Resnick called Cottrell

numerous derogatory names and accused him of deception and fraud, which

prompted Karen to want to learn about Resnick’s experiences with Cottrell, so

she located Resnick through the Internet, emailed him, and spoke with him on

the phone. There were several communications between Karen and Resnick

about his personal experiences with Cottrell.        Resnick, talked about his

experiences with Cottrell at BICO and Resnick's belief that patents were stolen

from him and that Cottrell had a role in this. Karen took a lot of notes. What was

                                       19
reported in the Blog is what Resnick told Karen. In fact, before posting the

Resnick story on her Blog, Karen emailed a draft of the proposed post to

Resnick, and asked him to "take a look at what I have written below from our

conversation today and check to make sure my facts are correct." Resnick

replied by email that it looked fine except with reference to an individual who

had not given permission to be named. Karen responded that she would omit

reference to such individual and would not add anything more of substance to

the post without Resnick’s okay.

       There is no evidence, much less "clear and convincing" evidence, that

Karen disbelieved what Resnick told her or that she otherwise had a high degree

of awareness of the probable falsity of what she posted. As concluded by the

superior court, the evidence more forcefully supports the opposite conclusion,

i.e., that Karen believed what Resnick told her and what she posted. 9 Simply,

the Resnick post cannot support a verdict for defamation.

       2.) Other Blog posts.10 As the superior court correctly noted, statements

       9
        Cited as evidence that Karen knew that her Resnick post was false is an email from her to
Peggy and another indicating that Cottrell had “probably not done anything illegal"; however, it
appears that such comment related specifically to an unrelated investigation involving BICO.
       10
         As noted, Cottrell’s attempt to save the verdict on defamation is focused on the BICO Blog
post; however, inasmuch as this Court is to review any evidence of defamation which would uphold

                                                20
in the initial post entitled "About" that ''Mr. Cottrell has not accomplished what

he claims to have done" and the post entitled "His Runs Aren't Even Real," as

told to Karen by Karen N. Frances are fairly characterized as opinion. But,

even if these statements could amount to libel per se as making charges in regard

to Cottrell's trade or profession, there is no evidence of actual malice on the part

of Karen, i.e, that Karen believed or entertained serious doubts as to whether

Cottrell's runs were legitimate. Indeed, prior to publishing these posts, Karen

communicated with Frances, and Frances related to Karen that Cottrell did not

run all the miles he claimed he did. Karen had also become aware that certain

running experts questioned the veracity of Cottrell's records.

       Also as found by the superior court, remarks in a "Master of Hyperbole"

post that Cottrell is "not trustworthy" and "[his]activities with the women that

he has deceived and taken money from are criminal” amount to opinion, and

there is no evidence these posts were made with actual malice. In fact as noted

by the superior court, Cottrell apologized during his testimony for certain

indiscretions and actions towards women, thus admitting the truth of these types




the verdict, this Court will examine other posts and emails raised in opposition to the JNOV.

                                               21
of statements, at least to a certain degree.11 The comment in a "More Vanishing

Stan Cottrell Web Content" post "seems like a scam artist is on the loose Beware

ladies - he's a sly one. ..." is likewise opinion and here again there is no evidence

of actual malice. Moreover, the evidence at trial established that Cottrell had two

affairs (Peggy and Karen Frances) and other women testified about Cottrell's

pursuit of them and/or their intimacy with Cottrell outside of his marriage.

Several of these women and other witnesses attested to giving or loaning money

to Cottrell and not being paid back.

       Lastly, a Blog post entitled "$800,000 Judgement," contains the statement

"According to the Pittsburgh Business Times, Stan Cottrell served as CEO and

director of BICO, Inc. An 8-k BICO, Inc. filing with the Securities and Exchange

Commission reflects a judgment in the amount of $800,000 against him by a

Pennsylvania court." And, as the superior court correctly found, this does not

communicate a defamatory fact and is not defamatory per se, and a judgment

had in fact been entered against Cottrell, though apparently it subsequently was

dismissed, and the Pittsburgh paper reported on the judgment. Karen put the


       11
         At oral argument before this Court, Cottrell’s attorney admitted that Cottrell had two extra-
marital affairs.

                                                 22
information she learned from the paper in her Blog and there is no evidence she

knew it to be incorrect.

       This Court has found no evidence to support a finding of “actual malice”

on the part of either Karen or Peggy with regard to the Blog posts at issue.

       3.) Various list- serve emails. The list- serve emails sent by Karen and

examined by the superior court                   likewise do not support a finding of

defamation.12 To the extent that they contain objectionable implications that

Cottrell is involved with shady businesses, the remarks are germane to his

character and his public figure status as a Christian evangelist. What is more,

many of the comments are in the nature of opinion.                        As for references to

Cottrell’s having extra-marital affairs, he admittedly had several such

       12
            The superior court specifically addressed remarks in the following emails denominated as
Exhibits.
         a.)Exhibit P38, contains several statements in issue: "experts in running knew 2 records he
claimed in the 1980s were fake," and "in the 1990s he was involved in promoting a transdermal
patch. . .and many people lost money in it when it was revealed the patch was just plastic and glue."

        b) Exhibit P202 contains the statements: "he cultivates and grooms his victims like a child
molester. He creates a trusting relationship with them and creates the environment for them to
cooperate and voluntarily do what he wants them to do. Then when they learn the truth they are
devastated . .They feel guilty for doing something they know was wrong. and they blame themselves
for not being able to tell ahead of time.”
        c) Exhibit P315, states:"It may be possible to charge him with theft by deception, but not
enough people have been willing to come forward. They are too embarrassed. The women he had
affairs with become emotionally devastated. His public persona is so larger than life they think no
one will believe them. His business partners are embarrassed, too. They feel that people knowing
they were involved with him, and that he took advantage of them, would make them look stupid. "

                                                  23
relationships. And, most significantly, the statements are based on at least some

evidence and there was no evidence that any of the comments were made with

“actual malice.”

   4.) Peggy's Facebook messages to Cottrell's Facebook "friends." The focus

is on one sent to “John Vanderveld.” It quotes a post from "Owen" on a running

blog and indicates that Cottrell: "reported seeing MIA's in Viet Nam, apparently

as part of a scam so he could make millions off the families of missing

Americans. " Here, again as correctly found by the superior court, there was no

evidence at trial that Peggy was aware of the likelihood that she was circulating

false information about Cottrell spotting MIA soldiers on his Viet Nam run, and

therefore, no actual malice. There was also evidence at trial that there was some

question by United States government officials in regard to Cottrell's statements

about what he observed while in Viet Nam.

      The Facebook message to Vanderveld further stated:

"He's been involved as a board member of many companies selling scam

products such as patches supposedly to help runners run better -- they were

eventually discovered to be just plastic with adhesive on them. Someone else

also reported that most of the time on these Ultra 'runs' he spends the journey

                                       24
riding in vehicles and when he gets near a town, he gets out and then runs about

2 or 3 Km. into the town to be met by the mayor who applauds his so called

running ability "

      But again, there was no evidence of actual malice with respect to these

statements which would relate to Cottrell's character controversy and status as

a runner and/or Christian evangelist. Furthermore, there was evidence at trial

of Cottrell's involvement with a company called "Lifewave" and that there was

controversy related to the "energy patch" marketed by the company.

      Simply, as the superior court concluded, none of the arguably defamatory

statements, even construing the evidence in favor of the verdict, can support

Cottrell’s claims of defamation.

      B.) Breach of Fiduciary Duty.

      The verdict includes a finding against Peggy and the Crockers for breach

of fiduciary duty. Peggy, by virtue merely of her status as a paramour of

Cottrell’s, owed no fiduciary duty to Cotttell. A relationship is deemed to be

confidential, whether it arises from nature, law, or contract, where the party is

situated so as to exercise a controlling influence over the will, conduct, and

interest of another or where the law requires the utmost good faith from a

                                       25
relationship of mutual confidence. OCGA § 23-2-58.13 “And it is well settled

that ‘[t]he party asserting the existence of a confidential relationship has the

burden of establishing its existence.’” Monroe v. Bd. of Regents of Univ. Sys. of

Georgia, 268 Ga. App. 659, 661-662 (1) (602 SE2d 219) (2004). This Cottrell

failed to do in regard to Peggy.

      As to Cottrell’s principal fiduciary claim on appeal that Peggy aided and

abetted or somehow induced a breach of fiduciary duty by the Crockers, Cottrell

would have to prove four elements:

       (1) through improper action or wrongful conduct and without
      privilege, the defendant acted to procure a breach of the primary
      wrongdoer's fiduciary duty to the plaintiff; (2) with knowledge that
      the primary wrongdoer owed the plaintiff a fiduciary duty, the
      defendant acted purposely and with malice and the intent to injure;
      (3) the defendant's wrongful conduct procured a breach of the
      primary wrongdoer's fiduciary duty; and (4) the defendant's tortious
      conduct proximately caused damage to the plaintiff.

Insight Tech., Inc. v. FreightCheck, LLC, 280 Ga. App. 19, 25-26 (1) (a) (633


      13
           OCGA § 23-2-58 provides:

      Any relationship shall be deemed confidential, whether arising from nature, created by law,
      or resulting from contracts, where one party is so situated as to exercise a controlling
      influence over the will, conduct, and interest of another or where, from a similar relationship
      of mutual confidence, the law requires the utmost good faith, such as the relationship
      between partners, principal and agent, etc.



                                                26
 SE2d 373) (2006).        Assuming for the sake of argument and for the

aforementioned analysis, that the Crockers are the “primary wrongdoers, ” there

was no evidence that the Crockers, who worked with Cottrell on two of his

running projects, themselves owed Cottrell a fiduciary duty.

      [T]he mere circumstance that . . . people have come to repose a
      certain amount of trust and confidence in each other as the result of
      business dealings is not, in and of itself, sufficient to find the
      existence of a confidential relationship.

Parello v. Maio, 268 Ga. 852, 853 (1) (494 SE2d 331) (1998). Thus, Cottrell’s

claims of breach of fiduciary duty must fail.

      C.) Invasion of Privacy.

      The jury found against Defendants for invasion of privacy based on the

public disclosure of embarrassing private facts.

      There are at least three necessary elements for recovery under this
      theory: (a) the disclosure of private facts must be a public
      disclosure; (b) the facts disclosed to the public must be private,
      secluded or secret facts and not public ones; (c) the matter made
      public must be offensive and objectionable to a reasonable man of
      ordinary sensibilities under the circumstances. The interest
      protected is that of reputation, with the same overtones of mental
      distress that are present in libel and slander. It is in reality an
      extension of defamation, into the field of publications that do not
      fall within the narrow limits of the old torts, with the elimination of
      the defense of truth.


                                        27
Cabaniss v. Hipsley, 114 Ga. App. 367, 372-373 (2) (151 SE2d 496) (1966)

(Internal citations and quotation marks omitted.).       As stated, in a public

disclosure case, the embarrassing private fact "must be private, secluded or

secret facts and not public ones." Cabaniss supra at 372 (2). Accordingly, the

protection afforded an individual's right to privacy may be withdrawn “‘to

whatever degree and in whatever connection [his] life has ceased to be private.'"

Id. at 374 (2). In the case at bar, the disclosures upon which Cottrell’s invasion

of privacy claim rests related to two issues at trial: Cottrell's multiple affairs

with married women, and his having not completed all of his long distance runs.

Cottrell now focuses solely on the disclosure of his extra-marital affairs;

however, they cannot support a verdict for invasion of privacy principally

because the facts allegedly disclosed by Defendants were not private.

      There is no dispute that Cottrell publicly traveled with Frances, and that

both he and Frances revealed the affair to others. His other admitted affair, the

one with Peggy, was likewise not private. Peggy herself expressly disclosed the

relationship to others and that Cottrell and Peggy openly acknowledged their

close relationship by having Cottrell accompany Peggy to her family



                                       28
gatherings.14 There is simply no basis upon which to sustain the jury verdict

against Defendants for invasion of privacy based on the public disclosure of

embarrassing private facts.

        In summary, a judgment notwithstanding the verdict was warranted in this

case.

        Judgments affirmed. All the Justices concur.




        14
         It should also be noted that with respect to any embarrassing public disclosures by
Defendants in regard to Cottrell's running, there was evidence at trial of longtime prior discussions
in distance-running circles of the authenticity of Cottrell's records and achievements.


                                                 29
