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SLANDER AND LIBEL
WHEN ASKED: THE QUALIFIED PRIVILEGE
Introduction
One hears it all the
time when an ex employer is asked for a reference. The ex employer
expresses fear that if there is any inaccuracy in the response, a suit
for libel or slander will ensue. However, California law provides a
specific protection for errors in statements made in specified business
and mutual interest situations which allows the honest mistake to avoid
liability. This particular privilege is specified in Sections 47 and 48
of the California Civil Code and is the topic of this article.
The reader will have
been presumed to have already read the article on
Slander and
Libel before reading this article.
The Privilege
Communication of a
harmful untrue statement constitutes “publication” or “broadcast” of
libel or slander. However, no liability attaches to certain libels and
slanders unless done intentionally and with malice.
Civil Code section
47 reads as follows (emphasis added):
§ 47. A
privileged publication or broadcast is one made:
(c)
In a communication, without malice, to a person interested
therein,
(1) by one who is
also interested,
or
(2) by one who
stands in such a relation to the person interested as to afford a
reasonable ground for supposing the motive for the communication to be
innocent, or
(3) who is requested
by the person interested to give the information.
This subdivision
applies to and includes a communication concerning the job performance
or qualifications of an applicant for employment, based upon credible
evidence, made without malice, by a current or former employer of the
applicant to, and upon request of, one whom the employer reasonably
believes is a prospective employer of the applicant. This subdivision
authorizes a current or former employer, or the employer's agent, to
answer whether or not the employer would rehire a current or former
employee. This subdivision shall not apply to a communication concerning
the speech or activities of an applicant for employment if the speech or
activities are constitutionally protected, or otherwise protected by
Section 527.3 of the Code of Civil Procedure or any other provision of
law.
There is another
statute, Civil Code section 48, which provides that malice cannot be
inferred from the communication alone:
§ 48. Malice not
inferred in specified privileged communication
In the case provided
for in subdivision (c) of Section 47, malice is not inferred from the
communication.
Thus, once the
privilege is demonstrated by the defendant, it is up to the plaintiff to
overcome the privileged by demonstrating “malice.”
California courts
have held that the defendant generally bears the initial burden of
establishing that the statement alleged to be qualifiedly privileged was
made on a privileged occasion, and thereafter the burden shifts to the
plaintiff to establish that the statement was made with malice.
Taus v. Loftus
(2007) 40 C.4th 683, 721.
What is Malice?
The word “malice” is
a term of art. Malice in defamation cases means “actual” or “express”
malice, hatred, or ill will, and not the fictional malice “implied by
law” from the intentional doing of a wrongful act without just cause. (Frommoethelydo
v. Fire Ins. Exchange (1986) 42 Cal.3d 208; Nova v. Flaherty
(1956) 145 Cal.App.2d 761, 764; Manguso v. Oceanside Unified School
Dist. (1984) 153 Cal.App.3d 574, 577, 580; see Noel v. River
Hills Wilsons (2003) 113 Cal.App.4th 1363, 1371 [mere negligence, in
the sense of oversight or unintentional error, is not alone enough to
constitute malice].
Malice must be ill
will beyond the normal feeling toward a wrongdoer, i.e., a motive
different from that which makes the communication privileged. (DeMott
v. Amalgamated Meat Cutters & Butcher Workmen of North America
(1958) 157 Cal.App.2d 13, 26; see Biggins v. Hanson (1967) 252
Cal.App.2d 16, 20 [if defendant’s primary motive is advancement of the
interest that the privilege protects and defendant speaks in good faith,
the “mere fact that he harbors ill will toward the plaintiff should be a
neutral factor”]. Ill will may be circumstantial evidence of malice,
but it is not the equivalent of malice; there must be a link between the
defendant’s hostility and an awareness of the probable falsity of the
statements. (Live Oak Publishing Co. v. Cohagan (1991) 234
Cal.App.3d 1277, 1292.)
The qualified
privilege is lost if the publication is motivated by hatred or ill will,
or by any cause other than the desire to protect the interest for the
protection of which the privilege is given. Brewer v. Second Baptist
Church (1948) 32 Cal.2d 791.
The absence
of extrinsic facts showing hatred or ill will is similarly not
determinative. Malice may be inferred from facts showing a lack of
reasonable or probable cause to believe in the truth of a defamatory
statement. The privilege remains, however, where the interest
protected by the privilege makes it reasonable to report rumors or
statements that the publisher has no reasonable cause to believe or may
even know are false, if he or she states the defamatory matter as a
rumor or suspicion and not as fact.
Thus, a newspaper is
privileged to print a fair report, attributed to a third party, of a
claim of official misconduct denied by the official, and is under no
duty to resolve conflicting claims. (Stockton Newspapers v. Superior
Court (1988) 206 Cal.App.3d 966, 980.) it at some point.
Actual malice may be
established either by direct proof of the defendant’s state of mind, or
by circumstantial evidence from which the jury might infer it as a fact.
(Fairfield v. Hagan (1967) 248 Cal.App.2d 194, 201; see McMann
v. Wadler (1961) 189 Cal.App.2d 124, 129 [evidence of prior
defamations of similar import]; Larrick v. Gilloon (1959)
176 Cal.App.2d 408, 416 [attack on officers of irrigation district by
property owner; evidence of language and tenor of publications, threats
of grand jury action, long continued controversy, and falsity of
statements]; Mann v. Quality Old Time Service (2004) 120
Cal.App.4th 90, 108 [where parties were business competitors, it was
not reasonable to assume that motive of defendant’s communication of
alleged defamatory statements to plaintiff’s customers was innocent].
Note that the
privilege is lost if the defendant knows the statement is false or
has no reasonable ground for belief in the truth of the statement.
(Sanborn v. Chronicle Publishing Co. (1976) 18 Cal.3d 406, 413.
But mere negligence in inquiring into facts, or blundering, is not
enough to defeat the privilege. (Roemer v. Retail Credit Co.
(1970) 3 Cal.App.3d 368, 371.)
“Common Interest”
Requirement
There is not a great
deal of law in California as to what constitutes a “common interest”
pursuant to Civil Code section 47. Since there is not much guidance in
the statute itself as to what constitutes a common interest, courts will
look to case law, but the question as to whether a common interest
exists is usually assumed in the case law.
There is a dearth of
case law on what someone can say and remain within the privilege. The
cases talk about malice but do not address the issue as to whether some
statements may be within the privilege while others could be outside it.
In dicta, the
California Supreme Court held in 1989 that the common interest was
historically based on business and family relationships, basing that
statement on a student note in the Stanford Law Review, who did a
legislative history of the statute which dated back to 1872 and was
lifted from New York’s identical statute. The California legislature
cited two New York cases in the legislative history. Other than this
statement, though, there do not appear to be any cases in California
defining a family relationship as a common interest.
California courts
have indicated that the qualified or conditional privilege is recognized
where the communicator and the recipient have a common interest and the
communication is of a kind reasonably calculated to protect or further
that interest. Deaile v. General Telephone Co. of California
(1974) 40 Cal.App.3d 841.
In 1994, the statute
was amended to specifically include communications between a prospective
employer and a former employer, at the urging of the Los Angeles
Community Schools. .
Conclusion
As with so much
regarding law, the myth of the massive judgment if one makes any mistake
is usually untrue. The law usually is quite practical in its application
in tort law and slander and libel are no exception. If there is an
honest mistake in information imparted to someone who has an interest in
knowing, this privilege likely applies. Nevertheless, the person making
the error should quickly and fully correct any misinformation imparted
and make a full retraction in most cases. |
