Qualified privilege allows individuals to make potentially defamatory statements in certain situations, such as when communicating with someone who shares a legal interest. The statement must be made in good faith and not maliciously. It can be used as a defense in a libel suit if made responsibly and in connection with professional duties. However, individuals are not universally protected from defamation suits and can be liable for statements made outside of a professional setting.
Qualified privilege is a form of legal privilege that allows individuals to make certain types of statements that might be considered defamatory in other contexts, but are not due to the unique nature of the situation. This privilege is said to be “qualified” because people cannot abuse it; people with qualified privilege, in other words, cannot say what they want, but enjoy certain liberties in particular situations.
For a communication to be considered protected by qualified privilege, someone must make a statement about a subject in which they have an interest to someone who shares that interest or concern. “Interest” in this sense means a legal interest, such as a moral or ethical duty, as opposed to a general interest. For example, when one employer calls another for a reference, that communication is covered by the qualified privilege. Other professionals such as journalists, doctors and lawyers are also protected.
Furthermore, the statement must be made in good faith, with all parties involved taking a responsible stance on how the statement is used. If one doctor tells another that a patient has syphilis as part of a routine documentation request, for example, that communication is protected because it is made in good faith and in connection with professional duties. If, however, such a statement were made in an area where members of the public could hear it, it would no longer be protected. Likewise, statements cannot be made maliciously. For example, an employer who provides a poor reference with the intention of sabotaging a business opportunity is not protected by qualified privileges.
If someone has the right or duty to convey information in connection with a professional duty, and someone later sues for libel, qualified privilege can be used as a defense. The defendant must be able to demonstrate that the statement was made responsibly and without fraud and that it was made in the context of her work. Qualified privilege recognizes that there are situations where people need to be able to communicate freely as part of their job, and as long as people do so responsibly, defamation concerns shouldn’t be a barrier to professional communications.
People who are protected by qualified privileges as part of their job are not universally protected from defamation suits. In addition to being liable in situations that do not meet the standard to be considered situations where qualified privilege was at stake, these individuals are also liable for statements that are not made in a professional setting.
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