7.15 Qualified Privilege

7.15 QUALIFIED PRIVILEGE

7.1501 In General.

Even if statements do not merit absolute immunity from defamation liability, they may nevertheless warrant a lesser protection, called a "qualified privilege." ⁴⁵⁹¹ This privilege can arise either from the common law or from statutes. A "qualified privilege" generally plays out in motions filed at the close of discovery or in jury instructions.

7.1502 Statutory Qualified Privilege.

Just as there are specific statutory absolute privileges, some laws provide a qualified privilege for particular kinds of statements. Statutory qualified privileges protect:

· Statements to the Virginia Board of Medicine, which are privileged unless made in bad faith or with malicious intent; ⁴⁵⁹²

· Any person reporting student alcohol or drug abuse as long as they act "in good faith with reasonable cause and without malice"; ⁴⁵⁹³

· Information supplied to the Judicial Inquiry and Review Commission, unless the informant was motivated by "actual malice"; ⁴⁵⁹⁴

· The owner, licensee, operator, or agent of a radio and television broadcasting station or network of stations for defamatory statements by a third party, unless the station "failed to exercise due care"; ⁴⁵⁹⁵

· Disclosure of information to an insurance institution, unless the information is false and given with "malice or willful intent to injure any person"; ⁴⁵⁹⁶

· Statements made in disciplinary investigations of lawyers by the Virginia State Bar, unless "it is shown that such statements were false and were made willfully and maliciously"; ⁴⁵⁹⁷

· Merchants' actions or statements related to an alleged shoplifter, as long as the merchant has "probable cause"; ⁴⁵⁹⁸

· Information furnished to and testimony given before the Board of Bar Examiners or one of its committees in the course of investigating lawyers, unless the speaker is "motivated by actual malice"; ⁴⁵⁹⁹

· Statements by an employer about an employee's "professional conduct, reasons for separation or job performance" (made to the employee's employer or prospective employer), unless the employer acted in bad faith or the employer is presumed to be acting in good faith, but the good faith can be rebutted by "clear and convincing evidence" that the employer disclosed the information "with knowledge that it was false, or with reckless disregard for whether it was false or not, or with the intent to deliberately mislead"; ⁴⁶⁰⁰

· Statements made in a credit report, unless the speaker acted with malice or willfulness; and ⁴⁶⁰¹

· Statements made by doctors, other medical professionals, and consultants to certain health care facilities or certain committees about professional services rendered by those practicing at the facilities, unless the communication was made "in bad faith or with malicious intent." ⁴⁶⁰²

7.1503 Common Law Qualified Privilege Generally.

A. Defendant's Status.

In some situations, a qualified privilege arises from the role of the alleged defamer. The most common example of this qualified privilege involves government officials.

B. Context of Statement.

A common law qualified privilege may arise from the context of the statement. The traditional formulation is not very specific:

A communication, made in good faith, on a subject matter in which the person communicating has an interest, or owes a duty, legal, moral or social, is qualifiedly privileged if made to a person having a corresponding interest or duty. ⁴⁶⁰³

Virginia courts nonetheless routinely apply this formulation. ⁴⁶⁰⁴

In 2011, the Virginia Supreme Court found that a circuit court had erred in granting a police officer's demurrer in an action brought by a man who was arrested in connection with an alleged abduction. The charges were later dismissed by nolle prosequi, and the records of his arrest were expunged. The court inexplicably did not discuss the possible qualifiedly privileged nature of the statements. ⁴⁶⁰⁵

C. Examples.

Virginia courts have found that the statements that appear in Appendix 7-9 deserved a qualified privilege.

7.1504 Abuse of the Privilege. ⁴⁶⁰⁶

A. In General.

Defendants may lose the benefit of a qualified privilege if they "abuse" it. The abuse may be apparent from the statement itself or discerned from the statement's context or the speaker's motive. ⁴⁶⁰⁷

B. Type of Abuse That Can Overcome a Qualified Privilege.

Virginia courts have identified several abuses that can destroy the traditional common law qualified privilege:

· Common law malice, shown by acts "independent of the occasion on which the communication was made"; ⁴⁶⁰⁸

· Unnecessarily wide publicity; ⁴⁶⁰⁹

· Use of intemperate or disproportionate language; ⁴⁶¹⁰ and

· Constitutional malice (consisting of either knowledge of the statement's falsity or substantial awareness of its probable falsity). ⁴⁶¹¹

C. Confusion About the Type of Malice That Can Overcome a Qualified Privilege.

Interestingly, opinions by the Virginia Supreme Court, ⁴⁶¹² the Fourth Circuit, ⁴⁶¹³ the Eastern District of Virginia, ⁴⁶¹⁴ the Western District of Virginia, ⁴⁶¹⁵ and Virginia circuit courts ⁴⁶¹⁶ frequently cite common law malice, not constitutional malice, as a means to defeat a qualified privilege from defamation liability. In fact, one Virginia Supreme Court case dealing with qualified privilege could not have been any clearer:

We frequently have addressed the issue of an alleged defamation within the context of an employment relationship, as is the case here. Typically in such cases, the allegedly defamatory statement is afforded a qualified privilege because the statement is made "between persons on a subject in which the persons have an interest or duty." In such instances, the plaintiff must establish both that the statement was false and that the defendant acted with actual malice. In this con text, "actual malice" is "behavior actuated by motives of personal spite, or ill-will, independent of the occasion on which the communication was made." ⁴⁶¹⁷

The Supreme Court's introductory phrase "in this context" seems to explicitly preclude reliance on constitutional malice to overcome the qualified privilege. However, the Virginia Supreme Court has in the past explained that common law malice somehow includes constitutional malice:

Instructions on the elements of malice which will serve to defeat a qualified privilege customarily state them in the disjunctive, as in the instruction quoted above. Any one of the elements if proved, will suffice. New York Times malice is merely one of the several elements of common-law malice set forth in our earlier decisions. We held in Montgomery Ward v. Nance, 165 Va. 363, 383, 182 S.E. 264, 272 (1935), in Chesapeake Ferry Co., 155 Va. [874] at 908, 156 S.E. [429] at 441, and in Aylor, 143 Va. [664] at 655, 129 S.E. [696] at 699, that common-law malice is shown, sufficient to defeat a qualified privilege, by proof that the speaker uttered defamatory words without believing them to be true, or lacked reasonable or probable grounds for believing them to be true. Thus, common-law malice, in Virginia, has long included New York Times malice. ⁴⁶¹⁸

One Virginia circuit court has provided the same explanation. ⁴⁶¹⁹

It does not necessarily make sense to automatically include constitutional malice as a subset of common law malice. It is possible to imagine scenarios where the alleged defamer would bear no ill will toward the plaintiff, yet knowingly make a false and defamatory statement about him or her. For instance, the plaintiff might be a lower level corporate employee whom the defendant does not even know. Yet the defendant could give false and defamatory statements about the plaintiff because the defendant holds a grudge against the plaintiff's corporate employer. Scenarios like this highlight the mismatch between constitutional malice (which focuses on the speaker's head) and common law malice (which focuses on the speaker's heart).

A 2007 Eastern District of Virginia decision noted the confusing state of the law as articulated by the Virginia Supreme Court. ⁴⁶²⁰ The Eastern District court ultimately rejected what it described as dicta in a Virginia Supreme Court case and instead pointed to language in an earlier case allowing a plaintiff to overcome a qualified privilege under what amounts to a negligence standard on the issue of truth or falsity. In contrast, other Eastern District of Virginia cases discuss only constitutional malice ⁴⁶²¹ or discuss both common law and constitutional malice. ⁴⁶²²

In 2010, a Western District of Virginia court initially seemed to indicate that only common law malice could overcome the qualified privilege. ⁴⁶²³ The court then indicated that the plaintiff had not established what appeared to be constitutional malice. But in its conclusion, the court again referred only to common law...