Omar Bennett
Defamation lawsuits are notoriously difficult to win, as plaintiffs must prove the elements of their case and overcome a range of defences. One such defence is privilege, which can be absolute or qualified/conditional. Absolute privilege grants a speaker complete immunity from liability for defamation, even if the statement was false and made with malicious intent. This defence is often used by public officials, people involved in judicial proceedings, and spouses. On the other hand, qualified privilege does not protect intentional lies or statements made with malice, spite, or any other negative motive. This defence is often used by employers when providing references for former employees.
| Characteristics | Values |
|---|---|
| Nature of the defense | Conditional bar to recovery |
| Applicable laws | Constitutional, statutory, and common law defenses |
| Types of privilege | Absolute and qualified |
| Absolute privilege | Always applies, provides complete immunity from liability for defamation |
| Absolute privilege circumstances | Statements involving legislative, judicial, and quasi-judicial proceedings and other acts of the state; statements made within a marital relationship; statements made when reporting on governmental proceedings; statements where the subject of the speech consents |
| Qualified privilege | Applies only if the defendant has not acted with actual malice, protects people acting in good faith |
| Qualified privilege circumstances | Statements made in governmental reports of official proceedings; statements made by lower-level government officials; statements by employers about former employees to warn others about harm or danger |
| Defamation definition | Negligent, intentional, or reckless publication of a false and "defamatory" statement that damages the subject's reputation |
| Defamation types | Libel (written) and slander (spoken) |
| Defamation defenses | Truth or substantial truth; opinion, sarcasm, satire, or hyperbole; first amendment freedom of speech |
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What You'll Learn
Absolute privilege in marital relationships
Defensive absolute conditional constitutional privilege is a legal concept that can be used as a defence in defamation lawsuits. Defamation lawsuits are not easy to win, as the plaintiff must prove all elements of their case and overcome the many defences available to the defendant. One such defence is absolute privilege, which grants the speaker complete immunity from liability for defamation, even if they made the statement with a malicious purpose.
There are two types of spousal privilege: spousal communications privilege and spousal testimonial privilege. The spousal communications privilege, or confidences privilege, protects the contents of confidential communications between spouses during their marriage from testimonial disclosure. This privilege can be invoked even if the marriage has ended due to divorce or the death of one spouse. However, it does not apply if the confidential communication was made to plan or commit a crime or fraud, or if it is revealed to third parties.
The spousal testimonial privilege, also known as spousal incompetency or spousal immunity, protects an individual from being compelled to testify in proceedings relating to their spouse. This privilege allows a spouse to refuse to testify against their partner in a criminal trial. However, it does not apply if one spouse is suing the other, or if one spouse has initiated a criminal proceeding against the other. Additionally, a spouse who wishes to testify in their defence during a criminal trial cannot assert this privilege to block their testimony.
It is important to note that these privileges are not absolute and are subject to various exceptions and conditions. The underlying purpose of spousal privileges is to foster harmony in marital relationships, and when this purpose is not served, exceptions may be created by state legislatures or court decisions.
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Qualified privilege and malice
Privilege is a frequently invoked defence in defamation claims. Defamation is a civil claim that arises from the negligent, intentional, or reckless publication of a false and "defamatory" statement that results in damage to the subject. Defamation includes both libel (written statements) and slander (spoken statements).
Absolute privilege and qualified privilege are the two types of privilege defences. Absolute privilege means that the person making the statement has the absolute right to make that statement at that time. It doesn't matter if the statement is true or what the speaker's intentions were. In other words, the person making the defamatory statement is immune from a defamation lawsuit. Absolute privilege applies to statements that involve legislative, judicial, and quasi-judicial proceedings and other acts of state. For example, absolute privilege applies to statements made by witnesses, attorneys, and judges during judicial proceedings.
Qualified privilege, on the other hand, applies only if the defendant has not acted with actual malice. Qualified privilege protects people who are acting in good faith and who make statements to fulfil a duty or serve some other positive purpose. For example, qualified privilege can protect statements made in governmental reports of official proceedings and statements made by lower-level government officials. However, qualified privilege does not protect intentional lies or statements made out of malice, spite, or any other negative motive.
Honest belief in the truth of a statement will not stop the statement from being deemed malicious (and therefore defamatory) if the defendant misuses the privileged occasion. In determining whether a statement is malicious, courts will consider whether the defendant had an honest belief that what they were saying was true and whether they used the privileged occasion for a purpose other than that for which the occasion was meant for.
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Defamation and freedom of speech
Defamation lawsuits are civil claims that arise from the negligent, intentional, or reckless publication of a false and "defamatory" statement that causes damage to its subject. Defamation is a false statement of fact, which means that statements of opinion are not considered defamatory. Opinions include things like sarcasm, satire, or hyperbole, where someone says something that isn't literally true to express a point of view. To be considered defamatory, a reasonable person must think that the statement is true.
There are a variety of defenses available in defamation claims, including constitutional, statutory, and common law defenses. Many defenses rely on the plaintiff's inability to prove crucial elements of their claim, such as the statement's
"Privilege" defenses can be broadly categorized into two types: absolute privilege and qualified (or conditional) privilege. When absolute privilege applies, it provides the speaker with complete immunity from liability for defamation, even if they made the false statement with knowledge of its falsity and a malicious purpose. Absolute privilege only applies in a narrow set of circumstances, generally involving legislative, judicial, and quasi-judicial proceedings and other acts of state. For example, absolute privilege applies to statements made by witnesses, attorneys, and judges during judicial proceedings. It also includes statements made when reporting on governmental proceedings or, in some jurisdictions, when the subject of the defamatory speech consents.
Qualified privilege, on the other hand, protects people acting in good faith who make statements to fulfill a duty or serve a positive purpose. For instance, qualified privilege can protect statements made in governmental reports of official proceedings and by lower-level government officials. Unlike absolute privilege, qualified privilege does not protect intentional lies or statements made out of malice, spite, or any other negative motive. In the context of defamation, the plaintiff must prove that the speaker acted with malice for a qualified privilege to be defeated.
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Defamation and opinion
The law surrounding defamation is complex, and there are many defences available to defendants facing defamation claims. One such defence is the "opinion" defence.
In general, defamation is a false statement of fact that harms someone's reputation. However, a statement of opinion cannot be defamatory. This is because opinions are matters of belief or ideas that cannot be proven one way or the other. For example, "Chris is a thief" can be proven false, whereas "Chris is a complete moron" is a subjective view that cannot be proven.
However, this defence is not always straightforward. For example, a statement that includes the words "I think" or "I believe" can still be defamatory if it is a factual statement. For instance, "Joe stole money from his employer" could be defamatory if there is no reason to believe it is true. Similarly, opinions that rely on underlying false facts will not be protected. For example, "In my opinion, Danielle is failing out of school because she failed biology" would not be protected if, in fact, Danielle received a passing grade in biology.
Courts will generally look at the totality of the circumstances surrounding the statement and its publication to determine how a reasonable person would view the statement. For example, a few courts have said that statements made in the context of an internet bulletin board or chat room are more likely to be opinions or hyperbole. However, they will still look at the remark in context to see if it is likely to be seen as a true opinion, even if controversial, or an assertion of fact dressed up as an opinion.
Another important consideration is the concept of privilege, which can also be a defence to a defamation claim. Privilege can be absolute or qualified. Absolute privilege means that the person making the statement has the absolute right to make that statement, and they are immune from a defamation lawsuit, even if the statement is false and made with malicious intent. There are only narrow circumstances in which absolute privilege applies, generally involving legislative, judicial, and quasi-judicial proceedings and other acts of the state. Qualified privilege, on the other hand, protects people who are acting in good faith and making statements to fulfil a duty or serve a positive purpose. This type of privilege does not protect intentional lies or statements made out of malice, and a plaintiff can successfully sue for defamation if the defendant abused the qualified privilege.
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Defamation and truth
Defamation is a false statement of fact that injures a third party's reputation. Libel and slander are types of defamation, with the former being written statements and the latter being spoken statements.
To prove defamation, a plaintiff must show four things:
- A false statement purporting to be factual
- Publication or communication of that statement to a third person
- Fault amounting to at least negligence
- Damages, or some harm caused to the reputation of the person or entity who is the subject of the statement
However, defamation lawsuits are not easy to win because plaintiffs must prove these elements while also avoiding the many defenses available to defendants. These defenses can be constitutional, statutory, or based on common law.
One such defense is "privilege," which can be absolute or qualified. Absolute privilege means that the person making the statement has the absolute right to make that statement at that time, regardless of its truth or the speaker's intentions. It provides complete immunity from liability for defamation and usually applies to statements involving legislative, judicial, and quasi-judicial proceedings and other acts of the state. For example, statements made by witnesses, attorneys, and judges during judicial proceedings are absolutely privileged.
Qualified privilege, on the other hand, protects people who are acting in good faith and making statements to fulfill a duty or serve a positive purpose. It does not protect intentional lies or statements made out of malice, spite, or any other negative motive. For instance, statements made in governmental reports of official proceedings or by lower-level government officials are qualified privileged.
Another defense to defamation is truth, or substantial truth. This means that as long as a statement is "substantially true," it can contain minor inaccuracies without being defamatory. The substantial truth doctrine recognizes that absolute precision in communication is often impractical, and the law should protect statements that are fundamentally accurate. The burden of proving the truth or falsity of a statement can vary depending on the jurisdiction and the nature of the case.
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Frequently asked questions
Defamation is a statement that injures a third party's reputation. It includes both libel (written statements) and slander (spoken statements).
"Privilege" defenses in defamation law can be broadly categorized into two types: Absolute Privilege and Qualified (or Conditional) Privilege. Absolute Privilege grants the speaker complete immunity from liability for defamation, even if the statement was made with a malicious purpose. Qualified Privilege, on the other hand, can be defeated if the plaintiff proves that the defendant made the statement with actual malice or a negative motive.
Absolute Privilege applies to statements made in legislative, judicial, and quasi-judicial proceedings, as well as other acts of state. It also includes statements made within a marital relationship and certain government officials acting in the course of their employment.
Yes, truth is an absolute defense to defamation. As defamation is defined as a false statement of fact, a statement that is substantially true, even with minor inaccuracies, cannot be considered defamatory.
