Defamatory defense: what is the 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.