7.14 Absolute Privilege

• Library: The Virginia Lawyer: A Deskbook for Practitioners (Virginia CLE) (2018 Ed.)

7.14 ABSOLUTE PRIVILEGE ⁷⁶⁸

7.1401 In General. If a defendant's allegedly defamatory communication deserves absolute privilege, the law will not impose liability even if the

[Page 959]

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 ⁷⁶⁹ as do state and local governments and agencies. ⁷⁷⁰ An Eastern District of Virginia decision has held that claimants could pursue a tort case against the United States but must first exhaust their administrative remedies. ⁷⁷¹

C. Foreign Governments. The Fourth Circuit has dismissed a defamation case against a foreign government, citing a federal law barring those actions. ⁷⁷²

D. Government Officials. High government officials generally enjoy immunity from defamation actions for statements made in the course of their official duties. ⁷⁷³ Federal employees can rely on absolute immunity in most circumstances. ⁷⁷⁴ Some states also extend this immunity to state and local officials. ⁷⁷⁵

[Page 960]

In a 1967 decision, the Virginia Supreme Court held that a state police captain did not enjoy absolute immunity. ⁷⁷⁶ However, this opinion did not cite the United States Supreme Court's earlier decision in Barr v. Matteo, ⁷⁷⁷ making it unclear where the Virginia Supreme Court would draw the absolute privilege line if called on to do so today.

Virginia circuit courts have taken differing positions. Several Virginia circuit courts have applied the sovereign immunity doctrine to immunize lower-level officials. ⁷⁷⁸ Other courts have refused to absolutely immunize local government officials in defamation cases, ⁷⁷⁹ especially when the plaintiff has pleaded malice, ⁷⁸⁰ claimed that the official acted intentionally, ⁷⁸¹ or argued that the defamation was inconsistent with the official's government job. ⁷⁸²

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. Inexplicably, the court did not address the possible absolute immunity of the police officer. ⁷⁸³

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. ⁷⁸⁴

[Page 961]

7.1403 Statutory Absolute Privilege.

A. In General. Specific statutes absolutely protect certain kinds of defendants. The random nature of these laws probably serves as a tribute to the lobbying prowess of certain interests.

B. Federal Statutes. The Federal Communications Decency Act of 1996 ⁷⁸⁵ recognizes an absolute privilege for those who place postings on certain websites and those who use those postings. ⁷⁸⁶ In 2012, an Eastern District of Virginia decision extended the absolute privilege to a defendant who compiled information from such a website and relayed it to others. ⁷⁸⁷

C. Virginia Statutes. Virginia protects the following defendants in explicit statutes:

• 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"; ⁷⁸⁸

• Insurance companies, their agents, and those furnishing information to them may safely explain why they chose not to renew a policyholder's policy; ⁷⁸⁹

• 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; ⁷⁹⁰ and

• Computer service providers receive absolute protection under federal law. ⁷⁹¹

[Page 962]

7.1404 Church Matters. As explained in paragraph 7.2107 , the Virginia Supreme Court has held that Virginia courts cannot exercise subject matter jurisdiction over "matters of church governance and doctrine." ⁷⁹² 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. ⁷⁹³ This absolute immunity extends to statements made in the course of the legislative process. ⁷⁹⁴ However, this immunity does not protect extra-legislative comments, such as those in press releases or speeches. ⁷⁹⁵

7.1406 Mandated Statements. Several Virginia courts have applied an absolute privilege to immunize a subcontractor's defamatory statements to a general contractor when the statements were contained in filings required by government policy. ⁷⁹⁶

Most recently, one court in the Eastern District of Virginia denied a motion to dismiss an action brought by a plaintiff who alleged that the defendant accused it of overbilling the government. The court found that the defendant could not rely on this general rule, because he had allegedly "fabricated the allegation against [the plaintiff] and caused" the report to "be made by" a third party against the plaintiff—rather than the normal situation in which the defendant "passe[s] along information it received from a third party." ⁷⁹⁷

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. ⁷⁹⁸

[Page 963]

7.1408 Judicial Proceedings.

A. In General. Those who communicate defamatory statements in connection with judicial proceedings may also receive absolute protection from liability.

B. Pleadings. The common law traditionally protected litigants from defamation actions based on statements included in their pleadings. ⁷⁹⁹ 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. ⁸⁰⁰

C. Testimony. Courts then extended this absolute privilege beyond the pleadings to include the testimony of a witness during a judicial proceeding and in depositions, ⁸⁰¹ attachments to pleadings, ⁸⁰² and affidavits. ⁸⁰³

Virginia applies this absolute privilege expansively. ⁸⁰⁴ 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. ⁸⁰⁵

An Eastern District of Virginia decision 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.

[Page 964]

[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. ⁸⁰⁶

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 met the standard, thus justifying the application of an absolute privilege:

• An FBI inquiry into alleged government contractor misconduct, in response to which a government contractor responded to official questions; ⁸⁰⁷

• Workers' Compensation Commission proceedings (in dicta); ⁸⁰⁸

• Required reporting of a subcontractor's misconduct by a general contractor doing work for the federal government; ⁸⁰⁹

• A fee arbitration between a law firm and its former client; ⁸¹⁰

[Page 965]

• Statements to the Virginia Board of Bar Examiners in connection with an application to the Virginia Bar; ⁸¹¹

• An EEOC investigation; ⁸¹²

• An FBI investigation, including analysis of statements previously given to the EEOC and the Virginia Employment Commission; ⁸¹³

• Process for issuing a police subpoena; ⁸¹⁴ and

• An investigation of an alleged assault. ⁸¹⁵

Virginia courts have found that the following proceedings did not meet the standard:

• Report to a state agency that a miner had been smoking in the mine; ⁸¹⁶

• An investigation by the Case Review Committee of the Navy Family Advocacy Program; ⁸¹⁷

• A bid protest under Virginia law; ⁸¹⁸

• Federal and state agency activities; ⁸¹⁹ and

• Proceedings before the Superintendent of the Virginia State Police. ⁸²⁰

[Page 966]

7.1410 Context of the Statements: Peripheral Communications.

A. Press Release Announcing Lawsuit. In Virginia, the combination of the absolute privilege for judicial statements and the qualified privilege protecting someone who accurately summarizes judicial pleadings permits a party to file a lawsuit and...