Understanding the Defense of Privilege in Defamation Law

In the world of defamation law, the “defense of privilege” holds significant importance. The privilege defense plays an important role in defamation lawsuits and may protect some individuals from liability in specific situations.

The privilege defense in defamation is a legal doctrine that protects certain statements, and publishers of those statements, from liability for publishing or communicating them – even when they are false. In general, this rule applies when the need for open and honest communication outweighs the harm that could be caused by the statement. However, certain conditions must be met for a defendant to use the defense of privilege.

At Minc Law, we have successfully represented individuals and businesses facing defamation in more than 26 states and 5 countries. We have extensive experience navigating state defamation laws and filing defamation lawsuits, removing defamatory content from the internet, and exploring alternative legal strategies to combat defamation (when appropriate).

In this article, we explain what the privilege defense is in the context of defamation, when it applies, and when it may be granted to protect some individuals from legal liability.

What is the Defense of Privilege?

Imagine you are a journalist writing an investigative piece about a local politician, or perhaps you are a teacher reporting a bullying incident to the school board. In these situations, you may unintentionally repeat or publish a false and defamatory statement in the interest of doing your job. However, these statements may be protected under what is known as the defense of privilege.

When a person shares a statement that could be false and harmful to someone else’s reputation, they may turn to a variety of legal defenses, and privilege is one such defense.

What is Defamation?

Defamation, also commonly referred to as ‘defamation of character’, occurs when someone communicates or publishes a false statement about another person or entity that damages their reputation.

There are two main types of defamation: libel and slander. Libel refers to false statements that are written or published in a tangible medium, like in a newspaper, a magazine, or on the internet. Slander is when false statements are communicated verbally, such as during a lecture, interview, or livestream.

Online defamation is when defamatory statements are published on the internet. This can happen through emails, blogs, discussion forums, or social media posts or comments. The internet makes sharing and spreading information effortless, which means a person’s reputation can be damaged quicker and the amount of eyes viewing it exponentially higher than traditional print.

What Are the Elements of a Defamation Claim?

To have a valid defamation claim and succeed in a defamation lawsuit, an individual or business needs to prove several key elements, including:

1. The person being sued (the defendant) made a false statement about the person suing (the plaintiff);
2. The false statement was communicated to or shared with someone else other than the plaintiff;
3. The defendant was at least negligent or acted with actual malice when they shared the false information;
4. The harmful statement was not protected by privilege;
5. The plaintiff was harmed by the statement. This could include loss of money, damage to their reputation, or emotional pain.

The fourth element, “privilege,” is the core focus in this article as it hints at a possible defense against a defamation claim. But what does it mean for a statement to be privileged? And what are some other common defenses to a defamation claim? We will delve deeper into these questions in the sections that follow.

Most Common Defenses to Defamation

There are several ways to defend against a defamation claim. Here are the most common defenses to defamation:

• Privilege: Some statements are protected as a legal right. These often involve topics of public interest.
• Truth: If what was published is substantially true, even if it is harmful, it may be protected by the defense of truth.
• Opinion: The opinion defense is used when the harmful statement cannot be proven or disproven.
• Consent: If the person about whom the statement was made consented to the statement being published, they cannot claim it was defamation.
• Statute of limitations: A lawsuit must be initiated within a certain amount of time (the ‘defamation statute of limitations’) after the harmful statement was made or published.
• Statutory defenses: The law provides some defenses, like Anti-SLAPP statutes, that protect against lawsuits intended to silence critics.
• Other defenses: Some defenses are not used very often today, like the libel-proof plaintiff doctrine.

What is the Defense of Privilege in Defamation?

The defense of privilege is a legal protection that allows a person to share certain statements, even if false, without opening themselves up to liability for defamation. For example, if a speaker or publisher of a false statement is accused of damaging another’s reputation by communicating said statement(s), they may claim that their words were privileged, which means they cannot be legally liable for defamation.

Some of these protections originate from court decisions while others are codified in laws at the state or federal level. These privileges (protections) may also vary from state to state. A person may also be granted the right to share certain statements by consent.

There are many types of privilege that apply in different situations and give different levels of protection. Some of the key privilege defenses we will review are:

• Absolute Privilege,
• Qualified Privilege,
• Fair Report Privilege,
• Statutory Privilege, and
• Neutral Report Privilege.

Each type of privilege has its own rules and is used in different situations.

Why Does the Defense of Privilege Exist?

The defense of privilege exists because there are times when it is important to let people speak freely. This defense protects speech in specific situations because if people fear being sued for defamation in their work or in the interest of promoting uninhibited debate, it may curb their freedom of speech or freedom of the press. These are rights protected by the U.S. Constitution.

Individuals need to be able to share thoughts, ideas, and information without fear of litigation (in certain circumstances). This protection empowers society to grow and develop and allows for open discussion of political, social, and economic matters.

For example, one reason absolute privilege exists is that the government wants individuals to speak openly and honestly in court without fear of being sued for defamation. So, statements made during court proceedings are protected by absolute privilege.

Another reason privilege as a defense exists is that Americans have long valued openness and transparency about matters that interest the public. For example, qualified privilege allows the media to report on important issues and repeat specific statements made by politicians or other notable figures without fear of being held liable for defamation.

What Are the Different Types of Privilege Defenses?

The defense of privilege grants individuals the legal right to share or publish certain statements without fear of defamation liability. The primary goal of these privilege defenses is to support freedom of speech and expression.

There are two key forms of privilege, absolute and qualified, each boasting its own parameters for immunizing a speaker or publisher from defamation liability.

Absolute Privilege

Absolute privilege provides complete (absolute) protection against defamation lawsuits and liability for certain statements made in specific situations, such as during court proceedings.

Qualified Privilege

Qualified privilege protects a person from defamation claims if the statement was made without malice and on a subject of interest to those who heard or read it.

Other Privilege Defenses

These other privilege defenses are often considered subcategories of qualified privilege and offer various levels of protection based on specific circumstances and types of statements.

• Fair Report
• Statutory Privilege
• Neutral Report

What is Absolute Privilege?

Absolute privilege is a defense that provides full protection against defamation claims for certain statements published or communicated in specific situations. This means that when absolute privilege applies, the person making the statement is completely immune from defamation liability, regardless of whether the statement was false or the person’s intent.

This type of privilege is generally applied to statements made during legislative, executive, and judicial proceedings or during quasi-judicial proceedings. It also protects statements made by witnesses, attorneys, and judges in court proceedings.

When absolute privilege applies, it provides the speaker with a complete defense without considering if they published the statement with actual malice or reckless disregard or whether the statement was factually true or false.

When Does Absolute Privilege Apply?

Although the specifics of who absolute privilege applies to can vary from state to state, there are some common instances and individuals who generally will enjoy absolute privilege in the course of their professional duties.

Judges & Judicial Officers

Judges, judicial officers, and officials performing judicial duties enjoy absolute privilege. This applies to any statement or action related to their judicial functions – whether it is a trial, a pre-or post-trial meeting, or signing necessary documents.

However, it is important to note that while these individuals will not be liable for defamation, they may be subject to impeachment or recall if they abuse their power.

Attorneys

Attorneys are also protected by absolute privilege when it comes to matters discussed in judicial proceedings or communications that occur prior to those proceedings. This ensures that they can protect their clients’ interests effectively. The privilege may also cover communications related to a proposed judicial proceeding as long as they are relevant to the matter at hand and made in good faith.

Parties to Judicial Proceedings

Absolute privilege extends to all parties involved in a judicial proceeding or a proposed one. This includes any communication made to an attorney, prosecutor, or officer of the court, as long as it is related to the subject of the proposed litigation. The protection covers statements made in pleadings and testimonies given during trials.

Jurors

Just like judges, jurors are granted absolute privilege as they perform their public duty in court. This covers all their duties – from discussing trial issues to delivering a verdict. They are protected even if the defamatory statement is about a person not involved in the proceedings as long as it relates to the case they are working on.

Legislators

Absolute privilege also protects members of legislative bodies such as Congress, state legislatures, city councils, or boards. The protection applies both during sessions and recesses, including when working in committees and subcommittees. However, discussions unrelated to their legislative functions are not covered by this privilege.

Witnesses

Witnesses, crucial to the legal process for providing the facts upon which judgments are made, also enjoy absolute privilege. This protection applies to any statements made before judicial proceedings or during their testimony, allowing them to speak openly without fear of defamation lawsuits. It covers both sworn testimonies and private conferences with attorneys related to the litigation.

However, witnesses may face perjury charges or contempt of court punishments for abusing this privilege. Just like their judicial counterparts, witnesses in legislative proceedings are afforded the same protection.

Executive Administrative Officers

Absolute privilege protects executive administrative officers in both federal and state governments. This ensures they can carry out their public duties without fear of defamation claims.

Any publication made in the performance of their duties, including tasks on the “outer perimeter” of their duties, is protected. The intent behind the publication is irrelevant as long as the officer is authorized to make the publication within their official duties.

Examples of Absolute Privilege

Absolute privilege can be a powerful tool and defense in defamation cases. The following are examples of situations where absolute privilege has provided complete immunity from defamation claims.

Kelley v. Bonney

In the case of Kelley v. Bonney, the defendant was shielded by absolute privilege. The Supreme Court of Connecticut found that statements made during teacher decertification proceedings carried out by the state Board of Education were absolutely privileged. The proceedings were considered quasi-judicial because they had a thorough process in place to ensure the proceedings’ credibility.

The Court noted that such proceedings significantly contributed to public policy concerns regarding the safety of school-age children, and therefore, the statements made during the proceedings were covered by absolute privilege.

Matthis v. Kennedy

In Matthis v. Kennedy, the Supreme Court of Minnesota ruled that a party who files an affidavit or a pleading in a judicial proceeding is given absolute immunity for statements that pertain to the subject of inquiry, even if they are defamatory or malicious in nature.

The court specified that statements must be somehow associated with an issue in the case, but it is not necessary for them to hold any legal relevance. This demonstrated how absolute privilege can shield individuals from defamation claims within the context of legal proceedings.

What is Qualified Privilege?

Qualified privilege, also known as conditional privilege, is a common defense in defamation cases where a speaker is allowed to communicate or publish allegedly defamatory statements under specific circumstances and to a specific audience.

Unlike absolute privilege, which fully immunizes a speaker or publisher of defamatory statements, regardless of their intention, qualified privilege applies in specific situations where the dissemination of information is made in good faith, in furtherance of a specific purpose, and to a limited audience.

In the context of public interest or where free communication is crucial, a claim of qualified privilege might arise. For instance, it might apply to journalists reporting on ongoing investigations, doctors sharing medical information with patients, or employers providing references for former employees.

Qualified privilege may be defeated if the statement is made with actual malice, which means the knowledge that the statement was false or with reckless disregard for its truth. In such cases, the plaintiff must meet a higher burden of proof than in a standard defamation claim to overcome the privilege.

The availability of qualified privilege depends on the specific circumstances of each case. Courts may take into account factors such as the relationship between the speaker and the recipients, the presence of a duty or request to supply the information, and the potential risk of harm to the publisher, recipient, or others.

It is important to note that qualified privilege is not universally applicable and may vary from state to state.

When Does Qualified Privilege Apply?

Qualified Privilege is applied in a variety of contexts to protect individuals who communicate or publish potentially defamatory statements. However, the protection offered is conditional. Some of the most common scenarios where qualified privilege applies include:

• Duty to report information: this could include instances where an employer provides a job reference.
• Common interest: if the publisher and the recipient share a common interest, qualified privilege may apply. For instance, a company shareholder making statements about the company’s management to other shareholders might be protected under this privilege.
• Public interest and fair comment: statements providing fair comment on matters of public interest, such as a newspaper publishing an opinion piece about a political figure or a public policy issue, may be protected under qualified privilege.
• Reports on government proceedings: this includes reports on official government proceedings, legislative proceedings, and similar public affairs. Journalists reporting on such matters, for example, may be protected by qualified privilege.
• Reply to a prior attack: if a person is responding to a defamatory attack, they may be protected by qualified privilege when making potentially defamatory statements about the person who originally attacked them.

As emphasized above, qualified privilege only protects the speaker if there is no evidence of actual malice or knowledge that the statement was false. Courts will examine a speaker’s motivations and behavior, and in some jurisdictions, even negligent behavior could lead to the loss of this defense.

Ohio’s Test For Qualified Privilege

States may have varying tests for determining if qualified privilege should apply. For example in Ohio, establishing qualified privilege requires:

1. Good faith,
2. An interest to be upheld,
3. A statement limited in its scope to this purpose,
4. A proper occasion, and
5. Publication in a proper manner and to proper parties only.

In other words, a communication may be subject to qualified privilege when the persons communicating it have an interest or duty pertaining to the communication and are doing so in good faith.

Examples of Qualified Privilege

Qualified privilege serves as a legal protection for entities like media outlets reporting on matters of public interest or when arrest records are published. It is often used when former employers provide references to prospective employers as long as their feedback does not contain knowingly false information. The same protection applies to the creation and use of certain internal employment documents.

While the specifics of qualified privilege can differ across jurisdictions, the general principle remains that statements made without malice and with the intent of sharing crucial information are usually protected.

Yetter v. Ward

In the case of Yetter v. Ward Trucking Corp., the Superior Court of Pennsylvania ruled in favor of an employer who was accused of defamation. The case centered around a termination letter detailing reasons for the employee’s dismissal, which the employee had shared publicly, not the employer. The court maintained that since the employer had only communicated the termination letter to the employee, qualified privilege applied.

Mitchell v. Fujitec Am.

In Mitchell v. Fujitec Am., Inc., the case revolved around a defamation claim made by a former employee. However, the claim failed as statements made to other employees were found to be covered by qualified privilege. An exception arose when a coworker knowingly made a false accusation of sexual assault against the former employee, negating her qualified privilege.

In Ohio, qualified privilege typically applies to good faith communications on shared interests between an employee and employer or between two employees regarding a third. This particularly pertains to communications aimed at protecting or furthering a mutual interest, including in the context of sexual harassment complaints.

Other Privilege Defenses

There are other less commonly used privileges that fall under the umbrella of qualified privilege. These defenses are often based on specific statutes or common law doctrines, and they apply to particular situations, persons, or acts. They are more granular compared to the general concept of qualified privilege.

Some of these defenses include:

What is Fair Report Privilege?

The fair report privilege protects accurate reports of official proceedings from liability for defamation. This privilege enables people to freely report on government proceedings without fear of being held liable for publishing something that may later be proven false. It generally applies when a defamatory statement fairly and accurately portrays information from an official statement by a public official on a matter of public concern, and the defamatory statement properly attributes that source.

Similar to the fair report privilege, the wire service defense is a privilege protecting the republication of news articles from reputable news services. This defense can shield newspapers, broadcasters, and other news agencies from liability for defamation when they republish a news item from a reputable news service, provided that:

• They did not know the information was false,
• The news item does not indicate any reason to doubt its truthfulness on its face, and
• They did not substantially alter the news item before republishing it.

Examples of Fair Report Privilege

Fair report privilege extends to precise and trustworthy recounting of events or statements stemming from official governmental proceedings. This can encompass a wide range of situations, from remarks made by a council member during a city council gathering to testimony provided within a court case, factual data outlined in police reports, or even the content contained within reports produced by government agencies.

Salzano v. N. Jersey Media

The Supreme Court of New Jersey, in Salzano v. North Jersey Media Group, Inc., held that a newspaper’s portrayal of a bankruptcy complaint was thorough, unbiased, and precise, therefore falling under the scope of the fair report privilege. The Court unequivocally declared that the fair report privilege encapsulated potentially defamatory statements included in court filings, even before these documents are formally presented to a judicial officer, as they are integral to the legal process.

However, the Court noted that the published material also included additional defamatory assertions that originated from sources unrelated to the bankruptcy complaint and did not fall under the category of official proceedings. These statements did not benefit from the protective shield of the fair report privilege, enabling the plaintiff to advance his lawsuit on the basis of these particular statements.

What is Statutory Privilege?

Statutory privilege refers to a protection established under a state or federal statute. These laws earmark specific situations where a statement, even if defamatory, is considered privileged.

It is vital to note that statutory privileges are applicable only in the jurisdictions that have enacted such laws, thereby making it necessary to scrutinize the relevant jurisdiction’s laws to ensure the applicability of the privilege.

Examples of Statutory Privilege

Statutory privileges are specific to each state, and they change based on the laws that a particular state has put in place.

For instance, in New Jersey, there is a law that provides protection to cable television broadcasters who make their broadcast services available to everyone.

In some states, there are laws that offer some protection if the publisher takes back or retracts the statement that was potentially damaging. For example, in Arizona, a law states that the person making the claim might not be able to get as much in damages if the publisher takes back the statement in a timely manner.

What is Neutral Report Privilege?

Neutral report privilege is a protection for the media when they cover topics that people generally care about. With this privilege, if a media company publishes something someone else said that turns out to be defamatory, the media company can be protected from liability.

This privilege usually comes into play when a respected person or group accuses a public figure or organization of something serious, and the media reports on this accusation in an unbiased, accurate way.

However, not all states recognize the Neutral Report Privilege, and some have not yet decided whether to accept or reject it. So, it is essential to look at the laws in the relevant state to see if this privilege applies there.

Examples of Neutral Report Privilege

Neutral report privilege, also known as neutral reportage, may apply in situations where media outlets share information about public figures or entities that later turns out to be defamatory. This narrow privilege protects the press in its role of informing the public about matters of significant interest.

Barry v. Time, Inc.

In the case of Barry v. Time, Inc., we can see the Neutral Report Privilege in action. Pete Barry, the former head coach of the University of San Francisco (USF) basketball team, and Quintin Dailey, a star player who later turned professional, were central figures in this lawsuit.

In July and August 1982, Time Inc.’s Sports Illustrated published two articles centering on allegations of illegal payments made to Dailey by a company owned by J. Luiz Zabala, a supporter of USF. Such payments would be in violation of the NCAA rules.

The crux of the lawsuit pertained to Dailey’s claim, reported in both articles, accusing Coach Barry of being involved in these illicit payments and personally handing over money to him. The articles also included Barry’s refutation of these allegations.

After the articles were published, Barry filed a complaint stating that Dailey’s statements were slanderous and their republication by Time Inc. was libelous. Barry claimed that Time Inc. was negligent in verifying the truth of these statements and had published them either knowing they were false or recklessly disregarding their truthfulness.

In defense, Time Inc. invoked the neutral report privilege, asserting that their republication of Dailey’s charges was constitutionally protected and also protected under the California fair comment privilege.

The court ruled in favor of Time Inc., finding that Barry was a limited public figure with regard to his position as head coach, and the lawsuit lacked the necessary specific allegations of “actual malice” to proceed. Additionally, the court applied the neutral report privilege, as the republication of defamatory statements made by one participant in a public controversy against another participant was protected under this privilege.

We Can Help Assess Your Defamation Claim & Explore Potential Defenses

At Minc Law, we know the ins and outs of defamation law in the United States. We help clients navigate state defamation laws, anticipate potential defenses they may encounter along the way, and remove defamatory content from the internet.

In cases where filing a defamation claim is not appropriate to resolve a client’s matter, we help them explore alternative legal strategies to combat defamation head-on. Defamation is a complex issue and consists of many moving parts, so it is important to consult an experienced attorney who can help advise on the merits and viability of your claim.

If you are the target of defamation, reach out to schedule your initial, no-obligation defamation consultation by calling us at (216) 373-7706, speaking with a Chat representative, or filling out our online contact form.