The last several posts have focused on absolute privileges. Today we’re going to talk about the qualified privilege, which is a lot more common than you might think.
A qualified privilege essentially means what it appears to mean. It allows the publisher/speaker to make a statement that would otherwise be defamatory without being held liable for making the statement. In other words, it’s a defense. The catch is that the statement must be made without malice (otherwise the privilege never arises in the first place: a fine distinction but that’s precedent for you) and to an interested person.
There are three general situations when this privilege applies:
This is by far the most commonly invoked qualified privilege. This is where the publisher makes the alleged defamatory statement to a person who, quite simply, has a common interest in the subject matter of the statement. For example, suppose you are a member of a Homeowner’s Association and you write a letter to the Board expressing your disapproval for the Board President’s in rather harsh terms regarding safety issues. Obviously, you and other board members will have a shared interest in keeping the complex safe. Therefore, unless malice is present, the qualified privilege will overcome a claim of defamation.
This is a statement made by “one who stands in such relation to the person interested as to afford a reasonable ground for supposing motive for the communication innocent.”
Request for Information:
The final category involves a statement made by one “who is requested by the person interested to give the information.” For example, in one case a court held that an employer had a privilege to make certain communications to the media about employees.