Defenses To Defamation – Including Qualified Privilege
Defamation refers to a statement (or statements) made that harms another person’s reputation and good name, for which the speaker can be held liable in court. Defamation includes libel and written statements, slander, and spoken statements. For a person to be liable for defamation, the defendant must have to have made a statement (or statements) about the plaintiff that was false, made that statement to a third party, and injured the plaintiff’s reputation and good name. However, there are several defenses that can be made to a defamation claim.
One such defense is absolute privilege. An absolute privilege protects the defamatory statement made even if the statement was made with actual malice. It states that even if the defendant made the defamatory statement with knowledge that it was false or with “reckless disregard” as to whether it was true or false, the defendant cannot be held liable for defamation in court.
Another defense of defamation that can be made is qualified privilege. A qualified privilege relieves the defendant of liability or responsibility of the statement if it was made without malice (“malice” requires that the defendant had ill will towards the plaintiff or that the defendant did not have reasonable grounds for belief of the statement made). Qualified privilege may apply in the following certain circumstances:
- Statements made in employee evaluations, performance reviews, or appraisals.
- An employee evaluation or performance review will not be able to be used as the basis of a libel suit unless it falsely accuses an employee of criminal conduct, lack of integrity, dishonesty, incompetence, or reprehensible personal characteristics or behavior.
- Statements made by an employer about employment references.
- Section 47c of the California Civil Code permits an employer to disclose certain information about a person’s employment to interested parties, including an inquiring potential new employer.
- The defendant’s having a strong and good-faith reason to believe that the statement was true.
- The defendant’s sharing the statement only with others who had an interest (personal or professional) in knowing the information in the statement.
A plaintiff suing for defamation must set forth actual evidence of publication of a false statement of fact. The party moving for summary judgment bears the initial burden of establishing the absence of a genuine issue of material fact. This burden may be satisfied by either (1) presenting evidence to negate an essential element of the non-moving party’s case; or (2) showing that the non-moving party has failed to sufficiently establish an essential element to the non-moving party’s case. Where the party moving for summary judgment does not bear the burden of proof at trial, it may show that no genuine issue of material fact exists by demonstrating that “there is an absence of evidence to support the non-moving party’s case.”
Truth is a complete defense against liability for defamation, regardless of bad faith or malicious purpose. Liability for defamation is precluded if the substance of the charge be proved true, irrespective of slight inaccuracy in the details. As the United States Supreme Court has observed, “California law permits the defense of substantial truth [to a defamation claim] and would absolve a defendant even if she cannot justify every word of the alleged defamatory matter; it is sufficient if the substance of the charge be proved true, irrespective of slight inaccuracy in the details.” Minor inaccuracies do not amount to falsity so long as the substance, the gist, the sting, of the libelous charge be justified.
In order to prove defamation, a plaintiff must offer admissible evidence of a false statement made by the individual defendant or, in the case of a corporate defendant, its representative. Where plaintiff attempts to prove defamation through multiple hearsay, he must establish a proper foundation, and an exception to the hearsay rules, for each level of proffered hearsay.
It is well settled that mere expressions of opinion, even if harsh or critical, are not actionable as libel. A publication must contain a false statement of fact to give rise to liability for libel. A statement of opinion cannot be false and is outside the meaning of libel. Context is also important, and depending on context and surrounding items such as the audience, the circumstances of the utterance and the purposes being served, the allegedly libelous statements may be innocently interpreted as hyperbolic or metaphorical.
Numerous cases have held that opinions that are negative expressions about a person’s work skills or performance, are not actionable as defamation. Thus, for example statements in a book about an attorney, referring to him as a low-class person and a wannabe Johnny Cochran, would be deemed hyperbolic opinion, which are not actionable.
Similarly, statements that a teacher was a babbler, and the worst teacher at a high school would not be held actionable, as opinions (in this case, the court of appeal affirmed grant of demurrer to libel claim). The court held that the context showed the comment on plaintiff as the worst teacher was an expression of anger or disgust, containing no verifiable facts.
A business has a privilege to communicate, without malice, with persons who have a common interest in the subject matter of the communication. Thus, employers whose business is attacked by the departing employee has a qualified privilege (without malice) to address the employee’s false charges and to explain the motive of that employee, to the business customers of the employer, who may have received the employee’s negative communication.
California Civil Code section 47, subd. c, codifies the common law privilege of common interest. This privilege applies to a narrow range of private interests. The interest protected was private or pecuniary; the relationship between the parties was close, e.g., a family, business, or organizational interest; and the request for information must have been in the course of the relationship. One authority explains the statutory interest as follows: (1) The ‘interest’ applies to a defendant who ‘is protecting his own pecuniary or proprietary interest.’ (2) The required ‘relation’ between the parties to the communication is a contractual, business or similar relationship, such as ‘between partners, corporate officers and members of incorporated associations,’ or between ‘union members [and] union officers.’ (3) The ‘request’ referred to must have been in the course of a business or professional relationship.”
Application of the privilege involves a two-step analysis. The defendant has the initial burden of showing the allegedly defamatory statement was made on a privileged occasion, whereupon the burden shifts to the plaintiff to show the defendant made the statement with malice. The existence of the privilege is ordinarily a question of law for the court.
To establish malice in defamation cases, the plaintiff must show that a defendant (1) actually knew of the falsity of the statement in question, or (2) published the statement with serious doubt about its truth. Gross or even extreme negligence will not suffice to establish actual malice; the defendant must have made the statement with knowledge that the statement was false or with actual doubt concerning the truth of the publication (to prove actual malice a plaintiff must demonstrate with clear and convincing evidence that the defendant realized that his statement was false or that subjectively the employer allegedly defamed plaintiff in statements to other employees after plaintiff’s termination).
A plaintiff must establish actual malice by clear and convincing evidence. The burden of proof by clear and convincing evidence requires a finding of high probability. The evidence must be so clear as to leave no substantial doubt. It must be sufficiently strong to command the unhesitating assent of every reasonable mind.
A libelous statement is not actionable until it has been published by defendant to a third person, but there is a narrow exception where the employee is coerced to republish it. Under the coercion exception, where the originator of the defamatory statement has reason to believe that the person defamed will be under strong compulsion to disclose the contents of the defamatory statement to a third person, the plaintiff may sue for libel, even if plaintiff himself makes the publication. Importantly, this exception has been limited to a narrow class of cases, usually where a plaintiff is compelled to republish the statements in aid of disproving them.
Thus, where a job-seeker must tell a prospective employer what is in his personnel file in order to explain away a negative job reference, there is no alternative but for the plaintiff to republish the defamation. By contrast, the exception does not apply where the defendant has done nothing to compel the plaintiff to republish the alleged defamatory statement in the first place.
For example, in Davis v. Consolidated Freightways (1994), plaintiff was terminated after management determined he had stolen company property. Plaintiff sued for defamation, relying on McKinney and Live Oak Publishing. In affirming summary judgment for the company, the Davis court found that plaintiff had failed to establish any triable issue of fact that he was under a “strong compulsion” to republish the alleged defamatory matter to prospective employers, because he failed to show there was ever any negative job reference attributable to defendant that plaintiff had to explain away.
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