§ 14-16 Defamation - Defense of Privilege

• Library: South Carolina Requests to Charge - Civil (SCBar) (2016 Ed.)

§ 14-16 Defamation - Defense of Privilege

Even if you find the defendant made a false and defamatory statement about the plaintiff and published it to a third party, not all defamatory statements published to a third party are actionable. The law recognizes that certain types of statements and communications on certain subjects are privileged and may be made regardless of their truth or falsity.

A "privilege" is an immunity granted to some person or group of persons which is not enjoyed by others. As the term is used in this case, a "privileged communication" is one which is made on such an occasion that the [speaker][publisher] will not be held responsible in an action for [slander][libel]. A privileged communication, under defamation law, is a communication which, except for the occasion on which or the circumstances under which it is made, would be defamatory and actionable. Privileged communications are either (1) absolute or (2) qualified, which is also referred to as a conditional privilege.

A. Absolute Privilege

An absolute privilege is a complete bar to liability for making defamatory statements. When a communication is absolutely privileged, no action lies for its publication, no matter what the circumstances under which it is published. In other words, a statement that is absolutely privileged, even though it would otherwise constitute libel or slander, is not actionable. There is no liability, even though the defamatory words may have been false and made with malice. In that situation, the plaintiff is not entitled to recover damages because the statement was made.

B. Conditional or Qualified Privilege

In a defamation action, the defendant may assert the affirmative defense of conditional or qualified privilege. [In this case, the defendant published the defamatory statement upon an occasion that makes it qualifiedly or conditionally privileged.]

ADDITIONAL CHARGE WHERE EVIDENCE REGARDING QUESTION OF PRIVILEGE IS CONFLICTING: In this case, the defendant claims the affirmative defense of qualified privilege. The burden is upon the defendant to establish this defense by the preponderance of the evidence. What is meant by the defense of qualified privilege? A communication made in good faith on any subject matter in which the person communicating has an interest or duty is qualifiedly privileged if made to a person with a corresponding interest or duty even though it contains matter which, without this privilege, would be actionable, and although the duty is not a legal one, but only a moral or social duty of imperfect obligation.

NOTE: The determination of whether a publication is privileged is a question of law to be decided by the court, at least where the facts are undisputed. However, the question of

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