Qualified Privilege as a Defense in a

Defamation Case
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BY JEAN MURRAY

Updated August 27, 2019

Employers are always hesitant to give references on employees because they fear a
defamation lawsuit. What employers can say about former employees is protected, to a
certain extent, by privilege.

First, we'll look at the concept of defamation and then at how someone can use qualified
privilege as a defense against a charge of defamation, and finally at how qualified
privilege affects employers.

What is Privilege?

Privilege is a special legal right or immunity granted to a person or persons. Qualified

privilege is immunity (protection) from the penalty of a lawsuit, usually a lawsuit for
defamation, for acts committed in the performance of a legal or moral duty and acts
properly exercised and free from malice.

If malice can be shown, qualified privilege is not a protection against defamation. Malice
is doing something with the intention to do someone wrong. In a defamation case, If
someone is hurt by the actions of another, it's usually not intentional. But malice in a
defamation case would be knowing that the information is false but acting with "reckless
disregard" for the truth.

What is Defamation?
Defamation is the act of harming the reputation of another by making a false statement
to another person. The act of defamation may be a false written statement or a false
oral statement, through charges of libel and slander. Libel is the legal term for a written
defamatory statement; slander is the legal term for an oral statement.

In order for a statement to be defamatory, it must be both false and communicated to

others. In the U.S., the person making the accusation of defamation (the plaintiff), the
person who has allegedly been defamed, has the burden of proof.

Defenses Against Defamation

Defendants typically have several defenses against a charge of defamation.

The truth is said to be the best defense against it; if the statement against another can
be shown to be true, then it isn't defamation. Most defamation defenses center on
proving that the statement is true. For example, if the person can be proved to be an
embezzler, there is no defamation.

A statement of opinion, even if it's harmful, is usually not considered defamation. An

example would be a statement in an editorial or comment section of a newspaper.

Consent by the plaintiff (the person harmed) is another defense. Giving an interview is
not considered consent.

Absolute privilege is another defense. It applies specifically to members of lawmaking

bodies for statements made "on the floor" of their legislative bodies. Other examples of
absolute privilege are political speech and ads and communication between spouses.

The plaintiff must also show that harm has been done to the plaintiff's reputation,
usually measured in economic terms. For the defamation case to be valid, there must
be proof that the statement was communicated to others.

Qualified Privilege as a Defamation Defense

Privilege, or immunity, is also a defense against a claim of defamation. Qualified
privilege is usually used in cases where the person communicating the statement has a
"legal, moral, or social duty to make it...." The person making the statement must show
that he or she has made the statement in good faith, believing it to be true and that the
statement was made without malice. One example of qualified privilege is the immunity
of members of the press from defamation charges for statements made in the press in
good faith unless it can be proven that they were made with malice.

Other examples when qualified privilege is used are:

 Proceedings of regulatory agencies, sessions of legislatures, and governmental

bodies
 Fair criticism in a review
 Statements made in self-defense or to warn others of harm or danger

Qualified privilege should not be confused with absolute privilege, which protects the
person from lawsuit no matter how wrong the action might be and even if the action is
committed with malice or an improper motive.

Qualified Privilege and Employers

An example of qualified privilege is the immunity from defamation for statements made
in the course of an employer's duties. The most common example of the type of
qualified privilege is an employer's communications with others as a character reference
for a current or former employee.

In a 2012 case, the 4th Circuit Court of Appeals ruled against a plaintiff who said that
qualified privilege didn't apply, in part, because of the alleged malice of the employer.

1. Tell the truth. Use your records on the employee to back up any statements you
make, to be sure you have proof.
 2. No personal comments. Answer the question asked but don't volunteer additional
comments or information. "Just the facts" here.
3. Best tip: Get consent from the employee or former employee. Get a consent form
from every employee, to establish your right to give information and to help you if
you're called into court.

Disclaimer: The information in this article is intended to be general in nature and is not
intended to be legal advice. Qualified privilege in employment situations is handled
differently in each state. Employers should check with legal counsel before giving
references or information about current or former employees.