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Defamatory Defense: What is Absolute Privilege?

 Another defense to defamation is the absolute privilege. California Civil Code § 47(a) and (b) provide a limited set of circumstances in which an employer is relieved of any liability or responsibility for his statements even if they were published with malice. In general, there are five kinds of statements that are absolutely privileged:

1. Statements made in the proper discharge of an official duty. For this protection to be triggered, the statement must be made by a public official (in other words, only government officials) and must be made in the official’s official capacity.

2. Statements made in any legislative proceeding. For example, statements made by legislators during legislative debates or during political broadcasts and speeches are covered by this defense.

3. Statements made in any judicial proceeding. Also known as the litigation privilege, this defense protects all publications made in a judicial proceeding. For example, all statements made in court as part of an attorney’s representation of his client and all documents filed by an attorney with the court as part of that representation would be protected under the litigation privilege.

4. Statements made in any other official proceeding. An official proceeding is a proceeding which resembles a legislative or judicial proceeding. This defense includes protection for statements made before an administrative board.

5. Statements made in the initiation or course of any proceeding authorized by law and reviewable by mandamus. This includes statements made in quasi-judicial proceedings where there is a hearing, evidence is exchanged, and a determination of the facts is vested in a board, officer, or tribunal. Unlike the conditional privilege, if the absolute privilege applies, statements will not be actionable even if the defendant spoke the words with malice and/or knowing them to be false. The policy rationale behind this privilege is to eliminate the threat of liability for communications made during all kinds of truth-seeking proceedings—judicial, quasi-judicial, legislative and other official proceedings--without respect to the good faith or malice of the person who made the statement, or whether the statement ostensibly was made in the interest of justice. Hagberg v. California Federal Bank (2004) 32 Cal.4th 350, 360.

Although the absolute privilege sounds very narrow, courts have expanded its reach in some circumstances. For instance, courts have held that even communications concerning wrongdoing to an official administrative agency, where the communication is designed to prompt action by that agency qualifies as an “official proceeding” within the meaning of Civil Code § 47 and is therefore absolutely privileged, no matter how maliciously motivated.

Defenses to Defamation

California law recognizes a number of defenses to defamation claims. Some of the most major defenses to defamation are:

• Truth: proof that a defamatory statement is true is a complete defense because falsity is an essential element of both slander and libel.

• The alleged defamatory statement was merely a statement of opinion not fact: only false statements of fact or opinions that insinuate that they are based on undisclosed defamatory facts are actionable.

• Retraction: in cases involving publication of a libel in a newspaper or of a slander by radio broadcast, if a defamer retracts the allegedly defamatory statement that often will serve as a defense to any defamation lawsuit, especially if the defamer also apologizes.

• Lack of publication: lack of publication is a complete defense because publication is an essential element of both slander and libel. To prove the element of publication, the defendant must have uttered or distributed the defamatory statement to east least one person other than the plaintiff.

• Privilege: California law recognizes two types of privileges, the absolute privilege and the conditional privilege, both of which may immunize an employer from liability if he or she can show that certain criteria are met.

Of these defenses, perhaps one of the most frequently argued by employers is the privilege defense. Future posts will discuss this defense in more detail and the distinction between the absolute privilege and the conditional privilege.

Sticks and stones may break my bones, but words can destroy my reputation

June 2014 – In an article published in Advocate: Journal of Consumer Attorneys Associations for Southern California, partner Iris Weinmann gives an overview of defamation claims, especially defamation by employers against employees.

View the full article

What qualifies as actionable defamation: fact vs. opinion

Not every false, offensive, and mean-spirited remark will justify a defamation suit. It is not enough that a statement is inherently hurtful and injurious to your reputation. For it to be actionable, a statement must assert or at least imply a false fact about you. A mere expression of opinion is not actionable under California defamation law unless it insinuates that it is based on some undisclosed defamatory facts. See Okun v. Superior Court (1981) 29 Cal.3d 442, 451-52.

Continue reading: What qualifies as actionable defamation: fact vs. opinion

What is the statute of limitations for defamation and when does it begin to run?

California’s statute of limitations for defamation is one year.  Cal. Code of Civ. Proc. § 340(c).  Because the “rule of discovery” applies to defamation, the one year statute of limitations does not begin to run until the defamed victim actually discovers or reasonably should have discovered the defamatory statement.  This means that even though a defamatory statement may have been made about you two, three, four or more years ago, you may still have an actionable claim for defamation so long as you file a lawsuit within one year of discovering that this defamatory statement was made about you.

Continue reading: What is the statute of limitations for defamation and when does it begin to run?