Legal Resource Center
Defamation and the Defense of Privilege
When a publisher claims privilege in the publishing of material that another believes is defamatory, there can be no recovery. Privilege is a complete defense for the publisher. Privilege may be obtained through consent of the person who may be defamed by the material. However, there also are privileges created by law, which are based on a policy that holds that good resulting from allowing publishing of potentially defamatory material outweighs harm that may result. These are absolute privileges and qualified privileges.
Absolute privilege, also called immunity, is granted to a person because his position or status requires that he be able to act in that position without fear of civil action. It will be addressed in this article. Qualified privilege occurs when a particular situation demands that a person be able to freely give information that could be untrue and defamatory. It will be addressed in a later article.
Who Holds Absolute Privilege?
Absolute privilege applies to people who hold special positions and/or positions of status that require them to make public decisions, generally in an official capacity. It is not the same as the constitutional privilege involving public officials and public figures in which a person must prove reckless disregard of the falsity of a statement in the event of a claim. Absolute privilege protects people who must make decisions for the good of the public interest, allowing them to act in their official capacity without fear of civil liability or civil action. If their conduct is threatened even by an unsuccessful civil action, their ability to operate effectively in their official capacity is hampered. These people are generally in the legal field or public service.
Judges/judicial officers: Judges, judicial officers, and any officials performing judicial functions are protected by absolute privilege. The function may be a judicial proceeding in which a judgment is necessary or it may be a required signature. It may be a meeting or discussion that is held before or after a trial. It may be a statement made that is relevant to a judicial proceeding. As long as it is connected to a judicial function that the judge or officer is performing, it is protected under this rule. Brown v. Shimabukuro, 73 App.D.C. 194, 118 F.2d 17 (1941); Ginsburg v. Black, 192 F.2d 823 (7 Cir. 1951).
It should be noted that although a judge or judicial officer cannot be sued for defamation, one who abuses his power may be subject to impeachment or recall.
Attorneys: Attorneys are protected by absolute privilege for matters revealed in judicial proceedings and any discussions or communications that occur prior to the judicial proceeding in order to ensure their ability to protect the interests of their clients. Any publication must have relevance to the matter at hand. Ginsburg v. Black, 192 F.2d 823 (7 Cir. 1951).
For attorneys, absolute privilege also may protect a communication made prior to a proposed judicial proceeding. However, the communication must be related to the matter and the proceeding proposed must have been proposed in good faith and be under serious consideration. Vogel v. Gruaz, 110 U.S. 311, 4 S.Ct. 12, 28 L.Ed. 158 (1884). This privilege does not extend to defamatory statements made at press conferences. Foster v. Percy, Ind., 387 N.E.2d 446 (1979).
Parties to Judicial Proceedings: In order for people to be able to freely use the courts to settle their private disputes, all parties involved in any judicial proceeding or proposed judicial proceeding are protected by absolute privilege. Any communication made to an attorney, prosecutor or officer of the court is protected as long as the material has some reference to the subject of the proposed litigation, even if a formal complaint is never made. This protection extends to statements made in pleadings and statements made on the stand during trial. Twyford v. Twyford, 63 Cal.App.3d 916, 134 Cal.Rptr. 145 (1976).
Jurors: Much like judges, jurors (petit jurors or grand jurors) make judgments in the court of law as a public duty and are, therefore, protected by absolute privilege. Duties of a petit jury, from discussion of trial issues to announcing a verdict, are immune from civil action, regardless of whether the defamation is directed at the judge, a fellow juror, a party, attorney or witness. If the statement is about a person not participating in the proceedings, the juror is protected as long as the material is related to the juror’s work in the subject case. Irwin v. Murphy, 129 Cal.App. 713, 19 P.2d 292 (1933).
While the powers of a grand jury are not addressed in detail here, generally the grand jury is authorized, and therefore protected, in making investigations in order in indict someone. Members of a grand jury are protected under absolute privilege in making reports of these investigations to officers of the court. The protection does not extend to an informal report of such an investigation, nor does it extend to conversations held outside the courtroom or jury room. Ryon v. Shaw, 77 So.2d 455 (Fla. 1955).
Legislators: This absolute privilege protects members of Congress of the United States as well as members of other bodies to which each state has designated legislative powers, including city councils or boards. The protection extends to communication while the legislative body is in session as well as in recess, and includes committees and subcommittees performing authorized work. Discussions outside of a member’s legislative function are not protected. Kilbourn v. Thompson, 103 U.S. 168, 26 L.Ed. 377 (1881).
Courts have held that republication in the interest of keeping members of the legislature informed of legislative work should be protected, but printers have been held liable for defamation circulated to the general public.
Witnesses: Since witnesses provide the facts upon which a judgment is made, they are protected by absolute privilege relative to any statements made prior to a judicial proceeding or during their testimony so as to allow them to speak freely without fear of lawsuits. The witness does not have to be under oath. Private conferences with an attorney relative to the litigation also are protected. Todd v. Cox, 20 Ariz.App. 347, 512 P.2d 1234 (1973).
Like the protection afforded attorneys, preliminary communications made by a witness or possible party to a proposed judicial proceeding are protected, but the proposed proceeding must be under serious consideration. It also should be noted that a witness’s privilege while on the stand is controlled by the trial judge and abuse of that privilege could subject the witness to prosecution for perjury or punishment for contempt of court.
Witnesses in legislative proceedings are afforded the same protection as witnesses in judicial proceedings.
Executive and Administrative Officers: Officers of the United States, including the most inferior positions, and the individual states, including the superior officers and in many states, lower ranking officers, are protected by absolute privilege in order that they may be able to freely perform their duties in the interest of public welfare. The court has held that a publication made in the performance of their duties, including the “outer perimeter” of their duties, is protected. Barr v. Matteo (1959) 360 U.S. 564. The purpose of the publication is immaterial provided the officer is authorized to make the publication within his official duties.
Absolute privilege creates immunity for those who are protected by it. However, there are conditions and limitations that can influence whether a person is protected or liable in a potential defamation claim. The attorneys at Meyers Roman Friedberg & Lewis, LPA can help you determine whether your situation is governed by absolute privilege. Call them at (216) 831-0042.