The “Privilege” Defense in a Defamation Case

Introduction

Before filing any civil lawsuit, it is important to consider the possible defenses your opponent may raise.  This is particularly important is cases involving defamation, a civil claim that arises from the negligent, intentional or reckless publication of a false and “defamatory” statement which results in damage to the subject. There are a wealth of defenses available in defamation claims and these defenses can come in variety of forms, including constitutional defenses, statutory defenses, and common law defenses. Many defenses rely on the premise that the plaintiff cannot prove a crucial element of their claim such as the element of “falsity.” Conversely, some defenses can be a complete or conditional bar to recovery even if the plaintiff can demonstrate all the traditional elements of a defamation claim. A category of defenses that falls into this latter group is “privilege.” Privilege defenses are frequently invoked in defamation claims and failure to consider these defenses throughout the pre-litigation and litigation process can negatively impact your claim or, at worst, lead to an early and total dismissal.

The defamation team at Buckingham has extensive experience handling privilege defenses at all stages of litigation and in jurisdictions across the country. This article provides an overview of the typical “privilege” defenses encountered in defamation cases, limitations and exceptions to these defenses and the manner in which these defenses impact claims.   

What is the “Privilege” Defense?

Generally speaking, when properly pled and proved a “privilege” defense can allow a defamation defendant to avoid liability even if they negligently made a false and defamatory statement that caused the plaintiff harm. Stated differently, when applicable, the privilege defense can provide immunity for speakers and publishers of statements that would, but for the defense, give rise to liability. Privilege defenses are available regardless of whether the defamatory speech sounds as libel or slander cases, whether the words spoken are defamatory or defamatory per se, and whether the defamation plaintiff is a public figure or a private citizen.

Privilege defenses were created in recognition of the public policy that under certain circumstances it is more important for the law to promote open and honest communication – even if it is defamatory – than to provide the subject of potentially defamatory statements an avenue for recovery. These circumstances typically involve statements made in the course of conduct necessary to a well-functioning society, such as statements made during court proceedings, statements made when reporting upon a governmental meeting, or statements made by a citizen when advising police of a potential crime. The theory is that individuals should not, for example, be dissuaded from reporting on a crime because they are afraid the accused will later sue them for defamation.

Types of “Privilege” Defense

There are a variety of different privilege defenses in tort law. However, for purposes of defamation law, privilege defenses can be broadly separated into two different categories: (1) Absolute Privilege, and (2) Qualified (or Conditional) Privilege. These two forms of privileges usually arise under different circumstances, have different impacts on the plaintiff’s claim(s), and are usually raised at different times during the litigation.

Absolute Privilege

When “absolute privilege” applies, it provides a speaker complete immunity from liability for defamation, even if the speaker made the false statement with knowledge that the statement was false and a malicious purpose. Because of the protections it affords, there are only a narrow set of circumstances in which absolute privilege applies. Generally, absolute privilege only applies to statements that involve legislative, judicial, and quasi-judicial proceedings and other acts of state. The public policy behind making such statements absolutely privileged is that those involved in functions necessary to the administration of governmental proceedings need to be able to do their jobs without fear of incurring liability.

Other forms of “absolute privilege” would include defamatory statements made solely within a marital relationship (i.e. a wife defaming a third party in private statements to her husband), statements made when reporting on governmental proceedings, or (in some jurisdictions) where the subject of the defamatory speech consents to the same.

Absolute privileges are more likely to be the subject of a motion to dismiss than a qualified or conditional privilege, as it is more likely to be apparent from the face of the complaint that an absolute privilege applies. For example, if it is plead in the complaint that the defamatory statement at issue was made during a criminal trial, the defendant could file a motion to dismiss because it is clear that the absolute privilege for statements made in a judicial proceeding would apply.

Qualified Privilege

A “qualified” or “conditional” privilege, unlike an absolute privilege, may be defeated if the plaintiff can demonstrate that the defendant made the statement at issue with malice or abused the privilege by exceeding the permissible terms of publication. Statements that are subject to qualified privilege are sometimes described as statements made on a proper occasion, from a proper motive, in and proper manner and which are based upon “reasonable cause” (or a reasonable but mistaken belief of their truth). A communication will generally be covered by a qualified privilege when the communication was made in good faith on a subject in which the speaker has an interest – or with regard to a matter on which the speaker has a duty – and the recipient(s) has a corresponding interest or duty. For example, the issue of qualified privilege often arises in the context of statements made within the context of disciplinary proceedings conducted by a private employer. A qualified privilege may also apply where the subject matter of the statement is of interest or importance to the public generally. For example, statements made, in good faith, about a potential health risk to the community might be subject to a qualified privilege.

The applicability of a qualified privilege is extremely fact specific and each jurisdiction may define – through case law or statute – the parameters of qualified privilege defenses somewhat differently. Accordingly, it is extremely important to research this legal issue for your specific jurisdiction before embarking on a defamation case.

Whether a qualified privilege will defeat a claim entirely can only be decided on summary judgment if there are no factual disputes, including the defendant’s mental state. If there are factual issues with regard to the substance of the allegedly defamatory statement, the circumstances under which it was published, or the intent behind the statement, it is a question for the jury. Accordingly, while the issue of qualified privilege often arises at summary judgment, cases are not often disposed of at the summary judgment stage based upon qualified privilege.

Notably, where, for example, the plaintiff is already obligated to prove a defendant made the defamatory statement at issue with actual malice, such as where the plaintiff is a public figure, the application of a qualified privilege will have little impact.

Limitations, Exceptions, and Impact on Defamation Cases

As it relates to the defense of absolute privilege, there are few, if any, limitations or exceptions. If the statement at issue was made in a forum traditionally recognized as giving rise to absolute privilege – e.g. a statement made at a public, governmental hearing or statement filed in a civil complaint – there is little room to argue the privilege does not apply.

Conversely, there are various limitations to statements subject to qualified privilege. As stated, a qualified privilege can be overcome by showing that the defendant made the statement with knowledge of its falsity or reckless disregard as to the truth or falsity of the statement at issue. Additionally, qualified privilege can be lost where, for example, the defendant publishes the statement at issue to an audience that is inclusive of individuals who have an interest in the statement but that is too broad. For example, a statement made by Employee A about Employee B to a Human Resources representative in a private meeting may be protected, while the same statement made by Employee A about Employee B to the entirety of the company in a mass email might not.

Another potential limitation on the qualified privilege defense relates to procedure. In some jurisdictions, the ability to defend based upon qualified privilege will be lost if the defense is not properly raised in a responsive pleading or prior to trial.

The impact of “privilege” defenses – whether absolute or qualified/condition – on a case is significant. If an absolute privilege applies, it is often best not to bring a defamation claim whatsoever and explore other potential causes of action that may fit the circumstances of a case. For example, while a defamation claim might be barred by absolute privilege for speech related to judicial proceedings, sometimes the facts at issue will give rise to a viable cause of action for claims such as abuse of process or malicious prosecution. Failure to account for or adjust one’s litigation strategy in the face of absolute privilege can be costly mistake, particularly in jurisdictions that have an “anti-SLAPP” statute.

When dealing with potential qualified privilege defenses, it is important to consider how this defense will factor into the litigation throughout the proceedings. Where there is a possibility of a qualified privilege defense being raised, it is important to plead – and seek evidence supporting – the existence of actual malice. It is also helpful to secure as much information as possible about all circumstances surrounding the publication of the statements to determine whether an abuse of the (potential) privilege occurred.

Conclusion

The “privilege” defense significantly impacts defamation cases by providing legal protections that encourage free speech while balancing the rights of individuals to protect their reputations. The implications of the privilege defense extend beyond individual cases, influencing media practices, public discourse, and the evolving landscape of defamation law. However, if you are the victim of defamatory speech or a lawyer pursuing a defamation claim, these general principles are less important than how these defenses will impact your claim and the trajectory of your case. Having a solid understanding of relevant privilege law in your jurisdiction will help guide your strategy and the confidence in your case.

If you have been the subject of false and defamatory statements and are interested in discussing your potential case with a group of trusted attorneys with experience handling defamation claims, please reach out to Andrew Stebbins and Christina Williams.