Defamation Defense: What is the Conditional Privilege?

California Civil Code § 47(c) grants a conditional privilege against defamation to communications made without malice and on subjects of common interest. This conditional privilege is often used by employers to argue that they should be protected from liability for statements made about employees to other employees in the employer’s organization. Critical to determining whether the conditional privilege is even applicable is 1) whether the allegedly defamatory communication was made on a matter of common interest and 2) whether the employer acted without malice in making the statement. Only if both of these requirements are met can an employer be immune from liability for his or her statements.

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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:

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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.

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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.

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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.

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