What Is Qualified Privilege in a Defamation Lawsuit?

Qualified privilege in a defamation lawsuit is a type of defense in which a statement made by the defendant is not considered defamatory in certain situations when no malice is involved. It’s often used by employers when acting as a reference for former employees.

How Qualified Privilege in a Defamation Lawsuit Works

Qualified privilege is a type of defense that may be used by a defendant in a defamation lawsuit. Generally speaking, there must be a clear reason why the statement made was not defamatory. Additionally, there cannot be actual malice behind the statement for qualified privilege to successfully be used as a defense.

"Qualified privilege is often used as a defense in defamation lawsuits because it essentially offers immunity," Ben Michael, an attorney with Austin-based Michael & Associates, told The Balance in an email. "It can be used as a defense if the person who made the statement can prove that they did so without actual malice and/or out of legal/moral duty. If the statement was made in 'good faith,' then actual malice cannot be proven."

Example of Qualified Privilege in a Defamation Lawsuit

One of the most common causes of a defamation lawsuit for small business owners is when you give a negative reference for a former employee. Your lawyer may use qualified privilege to try and get immunity from the defamation charges against you.

"Some states, such as Florida, have laws that provide qualified immunity from liability for giving a truthful job reference in good faith," David C. Miller, a Miami-based attorney with Bryant Miller Olive, said in an email to The Balance. "That means first, it has to be the truth and second, it can’t be given for some malicious or spiteful reason. You still may be sued, but this defense could keep the suit from succeeding."

Here's how that can play out in a hypothetical situation, according to Miller. Say you fire an employee because they were using bigoted language toward a person with a disability. A few weeks later, you get a call from a company offering services for people who are disabled. They’re calling because they’re considering hiring the former employee, who happened to list you as a reference. You disclose why you fired the employee. The former employee finds out what you said and threatens a lawsuit.

“You may be able to argue that you had a moral duty to disclose and that you have qualified immunity," Miller said.

Miller also advised, however, not to purposefully give negative references because you think you qualify for this defense.

Qualified Privilege vs. Absolute Privilege

In rare cases, absolute privilege protects certain types of speech from any defamation lawsuit at all—but it typically doesn't apply to employers.

"If the privilege is absolute, it cannot be defeated, no matter what," said Miller. "If this sounds harsh because it makes it 'OK' to lie about someone, that’s because it is. For that very reason, absolute privileges are very rare and very narrow."

So what is a situation in which absolute privilege can be used? Statements made by attorneys, jurors, and witnesses during legislative proceedings, for example, may fall under the absolute privilege category. Also, statements made under oath that are subject to subpoena may qualify for absolute privilege. Consult with a lawyer before considering your eligibility for absolute privilege, Miller said–in all likelihood, it will not apply to your situation.

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