7.15 Qualified Privilege

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

7.15 QUALIFIED PRIVILEGE

7.1501 In General. Even if statements do not merit absolute immunity, they may nevertheless warrant a lesser protection, called a "qualified privilege." ⁸⁵² 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; ⁸⁵³

• Any person reporting student alcohol or drug abuse as long as they act "in good faith with reasonable cause and without malice"; ⁸⁵⁴

• Information supplied to the Judicial Inquiry and Review Commission, unless the informant was motivated by

• 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"; ⁸⁵⁶

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• Disclosure of information to an insurance institution, unless the information is false and given with "malice or willful intent to injure any person"; ⁸⁵⁷

• 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"; ⁸⁵⁸

• Merchants' actions or statements related to an alleged shoplifter, as long as the merchant has "probable cause"; ⁸⁵⁹

• 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"; ⁸⁶⁰

• 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"; ⁸⁶¹

• Statements made in a credit report, unless the speaker acted with malice or willfulness; and ⁸⁶²

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• 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. ⁸⁶³

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, discussed in paragraph 7.1402 .

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. ⁸⁶⁴

Virginia courts routinely apply this formulation ⁸⁶⁵

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. ⁸⁶⁶

C. Examples. Virginia courts have found that the following statements deserved a qualified privilege:

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• Criminal complaint; ⁸⁶⁷

• Statement describing a football coach's termination, which was published to fellow employees; ⁸⁶⁸

• Statement explaining the reasons for a co-worker's termination, which was made to the terminated employee's direct supervisor; ⁸⁶⁹

• A social club's audit report and accompanying letter about the plaintiff's possible misconduct; ⁸⁷⁰

• A bank supervisor's statement about the reason for a subordinate employee's termination from the bank; ⁸⁷¹

• Statements about why a company terminated an em-ployee; ⁸⁷²

• Critical statements by an employee's manager; ⁸⁷³

• Statement by a company COO to the plaintiff's immediate supervisor that the plaintiff had told a company

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	client "if you have something to say, then say it to my face"; 874
•	Statements by a company official that an employee was being terminated because he had attempted to steal material from the employer, which amounted to an accusation of "criminal dishonesty"; 875
•	Critical statements by one worker about a co-work-er; 876
•	A statement by a supervisor to a fellow employee that the plaintiff was terminated because he "sent the wrong information" to an advertising agency; 877
•	A statement by the plaintiff's former employer's sales manager to another employee that the plaintiff "was fired 'for not making his budget'"; 878
•	Statements from a doctor to a patient about another doctor; 879
•	Statements related to "'employment matters,' provided the parties to the communication [had] a duty or interest in the subject matter"; 880
•	Communications about someone to law enforcement officials; 881

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• Critical statements made by hospital officials about doctors who left the hospital's employment; ⁸⁸²

• Statements by a police officer to a Naval Investigation Committee about a naval officer's alleged mis-conduct; ⁸⁸³

• Statements made by professors as part of a university tenure evaluation process; ⁸⁸⁴

• Allegations in a statement to the EEOC that an auto dealership did not adequately investigate or remedy sexual harassment; ⁸⁸⁵

• Statements about a Navy captain during a promotion review process; ⁸⁸⁶

• Statements to the EEOC about an employer's failure to identify sexual harassment; ⁸⁸⁷

• Statements to the police and the Commonwealth's Attorney identifying the plaintiff as a robber; ⁸⁸⁸

• A former employer's statements offered during a reference check; ⁸⁸⁹

• A letter of termination, which included accusations of misconduct; ⁸⁹⁰

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• An employer's statements about the reason for an employee's discharge; ⁸⁹¹

• A supervisor's opinions about an employee's con-duct; ⁸⁹²

• Comments by a community association's board of directors about an association member; ⁸⁹³

• Complaints about a public employee's conduct; ⁸⁹⁴

• A complaint about a contractor made to federal and state agents; ⁸⁹⁵

• A high school teacher's statements to a newspaper about a murdered student; ⁸⁹⁶

• A filing of a lis pendens; ⁸⁹⁷

• Statements made to a police investigatory board; ⁸⁹⁸

• Reports of a crime to law enforcement; ⁸⁹⁹

• Statements made in self-defense; ⁹⁰⁰

• Communications between an insurance adjuster and an insured; ⁹⁰¹ and

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• Comments in a newspaper advertisement about a business competitor. ⁹⁰²

7.1504 Abuse of the Privilege. ⁹⁰³

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

B. Type of Abuse That Can Overcome a Qualified Privilege. The Virginia Supreme Court has 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"; ⁹⁰⁴

• Unnecessarily wide publicity; ⁹⁰⁵

• Use of intemperate or disproportionate language; ⁹⁰⁶ and

• Constitutional malice (consisting of either knowledge of the statement's falsity or substantial awareness of its probable falsity). ⁹⁰⁷

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C. Confusion About the Type of Malice That Can Overcome a Qualified Privilege. Interestingly, opinions by the Virginia Supreme Court, ⁹⁰⁸ the Fourth Circuit, ⁹⁰⁹ the Eastern District of Virginia, ⁹¹⁰ the Western District of Virginia, ⁹¹¹ and Virginia circuit courts ⁹¹² cite only common law malice without ever mentioning constitutional malice. 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 context, "actual malice" is "behavior actuated by motives of personal spite, or ill-will, independent of the occasion on which the communication was made." ⁹¹³

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...