7.14 Absolute Privilege
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7.14 ABSOLUTE PRIVILEGE 4505
7.1401 In General.
If a defendant's allegedly defamatory communication deserves absolute privilege, the law will not impose liability even if the defendant makes a false and defamatory statement with knowledge of falsity. Most courts construe absolute privileges very narrowly.
7.1402 Governments and Their Employees.
A. In General.
The law provides absolute immunity to some defendants because they work for the government.
B. Federal and State Governments.
The United States enjoys sovereign immunity from defamation claims 4506 as do state and local governments and agencies in the exercise of governmental functions. 4507
C. Foreign Governments.
The Fourth Circuit has dismissed a defamation case against a foreign government, citing a federal law barring those actions. 4508
D. Government Officials.
High government officials generally enjoy immunity from defamation actions for statements made in the course of their official duties. 4509 Federal employees can rely on absolute immunity in most circumstances. 4510 Some states also extend this immunity to state and local officials. 4511
In a 1967 decision, the Virginia Supreme Court held that a state police captain did not enjoy absolute immunity. 4512 However, this opinion did not cite the United States Supreme Court's earlier decision in Barr v. Matteo, 4513 making it unclear whether the Virginia Supreme Court would draw the absolute privilege line if called on to do so today.
Several Virginia circuit courts, however, have applied the sovereign immunity doctrine to immunize lower-level officials. 4514 Other courts have refused to absolutely immunize local government officials in defamation cases, 4515 especially when the plaintiff has pleaded malice, 4516 claimed that the official acted intentionally, 4517 or argued that the defamation was inconsistent with the official's government job. 4518
In 2011, the Virginia Supreme Court ruled that a circuit court 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. Inexplicably, the court did not address the possible absolute immunity of the police officer. 4519
The Fourth Circuit has explained that
Under Virginia law, defamation is an intentional tort for which government officials do not enjoy sovereign immunity, irrespective of whether they acted within or without the scope of their employment. 4520
7.1403 Statutory Absolute Privilege.
A. In General.
Specific statutes may absolutely protect certain kinds of defendants from defamation claims. The random nature of these laws probably serves as a tribute to the lobbying prowess of certain interests.
B. Federal Statutes.
Section 230 of the Federal Communications Decency Act of 1996 (CDA) 4521 recognizes an absolute privilege (or immunity from liability) for those who place postings of others on certain websites and those who use those postings. 4522 In 2012, an Eastern District of Virginia decision extended CDA immunity to a defendant who compiled posted information from interactive computer websites and relayed the information to others. 4523 However, when a defendant "creates, authors, or otherwise materially contributes to a publication such that the content is properly attributable to them, CDA immunity will not apply." 4524 The immunity inquiry often turns on whether the defendant is a passive host of others' content or an active participant in that content.
C. Virginia Statutes.
Virginia statutorily protects the following defendants from defamation liability:
· Radio and television broadcasters enjoy absolute immunity for any defamatory statement broadcast over their facilities "by or on behalf of any candidate for public office"; 4525
· Insurance companies, their agents, and those furnishing information to them may safely explain why they chose not to renew a policyholder's policy; 4526 and
· Employers may not be subjected to liability for statements to the Virginia Employment Commission because the statements cannot be used in any other judicial or administrative proceeding. 4527
7.1404 Church Matters.
The Virginia Supreme Court has held that Virginia courts cannot exercise subject matter jurisdiction over "matters of church governance and doctrine." 4528 This preclusion of jurisdiction essentially provides an absolute privilege immunizing statements involving those matters.
7.1405 Legislators.
Virginia law protects members of Virginia's General Assembly from defamation actions to the same extent as federal law shields members of Congress. 4529 This absolute immunity extends to statements made in the course of the legislative process. 4530 However, this immunity does not protect extra-legislative comments, such as those in press releases or speeches. 4531
7.1406 Government Contractors.
Government contractors may enjoy absolute privilege from defamation in two instances: (i) when their statements are made pursuant to government contract obligations or government-imposed duties, and (ii) when their statements are made in response to government inquiries in connection with an official investigation or proceeding. 4532
Courts in the Eastern District of Virginia have rejected the absolute privilege where a defendant voluntarily initiates an investigation about the plaintiff or causes a report to be made by another about the plaintiff. 4533
In McCray v. Infused Solutions LLC, the contractor sent a termination warning notice to an employee about her poor behavior, blind copying other contractor employees. She sued for defamation, and the District Court for the Eastern District of Virginia rejected the contractor's defense of absolute privilege. The warning notice was neither sent to the government nor required by the government. Moreover, the notice was not connected to an official investigation but rather was part of routine employee discipline activities.
Still, the court ruled in favor of the contractor under a qualified privilege, finding insufficient evidence of malice to defeat the privilege. 4534 Thus, when absolute privilege is not available, qualified privilege may be a viable government contractor defense to defamation. Contract defenses may also apply. 4535
7.1407 Charitable Immunity.
Organizations with a charitable status and purpose deserve immunity from defamation actions if they are sued by a member of the class of persons who benefit from the defendant's charitable work. 4536
7.1408 Judicial Proceedings.
A. In General.
Those who communicate defamatory statements in connection with judicial proceedings may also receive absolute protection from liability. 4537
B. Pleadings.
The common law traditionally protected litigants from defamation actions based on statements included in their pleadings. 4538 The only requirement is that the pleading or statement be relevant to the proceeding. Although this relevance requirement makes the protection somewhat less than automatic, the requirement creates such a low threshold that the protection may properly be considered as absolute. 4539
C. Testimony.
Courts extended this absolute privilege beyond the pleadings to include the testimony of a witness during a judicial proceeding and in depositions, 4540 attachments to pleadings, 4541 and affidavits. 4542
Virginia applies this absolute privilege expansively. 4543 In one case, for instance, a deponent in a civil case repeated allegedly defamatory statements made by one of the defendants. The statute of limitations had run on the original defamatory remarks. The Virginia Supreme Court held that both the deponent and the defendant enjoyed absolute protection because subjecting the original source of a defamatory statement to liability based on repetition of the statement in a privileged setting would tend to deter truthfulness in litigation. 4544
An Eastern District of Virginia court applied Tennessee law, which the court found shared Virginia's absolute protection for statements during a deposition. The court explained the impact of permitting lawsuits based on deposition testimony.
[A] plaintiff could haul a defendant into depositions and simply ask the defendant, under oath, a leading question, which necessarily requires a defamatory answer and then make the defamatory answer the basis of a lawsuit. This is an absurdity, which the law should not allow. 4545
7.1409 Quasi-Judicial Proceedings.
A. In General.
In Virginia, the absolute privilege governing judicial proceedings is very broad. An obvious question presents itself: What constitutes a judicial proceeding for purposes of analyzing this protection?
B. Factors.
A proceeding is more likely to generate an absolute privilege if it is formal, is governed by the rules of evidence, is supervised by a judge or magistrate, and carries other indicia of formal judicial proceedings.
C. Examples.
Virginia courts have found that the following proceedings meet the judicial-proceeding standard, justifying an absolute privilege against defamation liability:
· An FBI inquiry into alleged government contractor misconduct, in response to which a government contractor responded to official questions; 4546
· Workers' Compensation Commission proceedings (in dicta); 4547
· Required reporting of a subcontractor's misconduct by a general contractor doing work for the federal government; 4548
· A fee arbitration between a law firm and its former client; 4549
· Statements to the Virginia Board of Bar Examiners in connection with an application to the Virginia Bar; 4550
· An EEOC investigation; 4551
· An FBI investigation, including analysis of statements previously given to the EEOC and the Virginia Employment Commission; 4552
· Process for issuing a police subpoena; 4553 and
· An investigation of an alleged assault. 4554
Virginia courts have found that the following proceedings did not meet the standard:
· Report to...
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