Defamation: Qualified Privileges

When studying Defamation (which can show up in both Constitutional Law questions and Torts questions) don't forget about the qualified privileges.

Questions testing qualified privileges will present a situation in which defendant makes a statement about plaintiff which plaintiff deems defamatory. Generally the plaintiff will be a private figure, and so all that will be required for plaintiff to prove defamation is that defendant made the statement, and a reasonable person would have realized the statement was false (ie., defendant made the statement with negligence).

But when a qualified privilege applies, the analysis changes. A qualified privilege applies when the statement bears some relationship to a public or private interest of either the publisher, the listener, or the general public. If the statement furthers the interest, then negligence is no longer the standard; plaintiff will have to prove that the statement was made with malice (knowledge that the statement was false, or reckless disregard for the truth of the statement.)

An example should help to clarify the point. X is applying to a job and the prospective employer calls X's previous employer for a reference, and is told by X's previous employer that X was caught stealing on the job. In other words the statement provided by X's previous employer is in the interest of X's prospective employer. Provided that the previous employer reasonably believed that X had stolen on the job, the previous employer cannot be liable for defamation even if it's true that X never did, in fact, steal. Liability will only be appropriate if X's previous employer knew that X did not steal (or recklessly disregarded that truth) and made the false statement regardless of that knowledge.