Except for the litigation privilege in defamation matters, by far the most common privilege encountered will be the “conditional” or “qualified privilege.” These privileges exist when, for policy reasons, a speaker should be encouraged to speak but for which the absolute privilege should be inapplicable. Generally, even if the qualified privilege exists, a party who makes defamatory comments in “bad faith” or in an “abusive” fashion will nonetheless be liable. This is what distinguishes this privilege from the “absolute” privilege, which precludes a suit no matter how abusive the speaker acts.

One of the more common examples of conduct that is subject to the qualified privilege is matters designed to protect the public interest, such as making a report to the police or other law enforcement authorities of criminal behavior. If a speaker makes a report to the police that a crime has been committed or is in progress, the speaker is protected as long as the statement is reasonably believed to be true and protects a legitimate public interest. For example, if a speaker believes that a person is engaged in robbery and reports that conduct, the speaker is insulated from liability even if wrong and even if there are no real facts to support the assertion. On the other hand, maliciously making such an accusation with no reasonable belief to support it may very well lead to liability.

Michael L. Kitchen

Disclaimer: This blog is for information purposes only. Legal advice is provided only through a formal, written attorney/client agreement.