Absolute Privilege - Explained
Absolute privilege from liability for defamation
Written by Jason Gordon
Updated at June 29th, 2021
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Table of Contents
What is Absolute Privilege as a defense to defamation?When does an individual have Absolute Privilege from liability for defamation?What is Defamation of Character?Is an attorney protected from liability for defamation for statements made in court?Is a politician protected from liability for defamatory statements made in speeches?What is Qualified Privilege?What is Absolute Privilege Not testify against a spouse?Academic ResearchWhat is Absolute Privilege as a defense to defamation?
Absolute privilege is a defense used in proceedings for defamation of character. The defense applies only to certain individuals (such as legislators on the floor) and/or certain specific circumstances.
Absolute privilege also refers to the protections afforded an individual from testifying against his or her spouse.
Back To: Legal Disputes: Civil and Criminal Law
When does an individual have Absolute Privilege from liability for defamation?
Absolute privilege is intended to afford protection to certain individuals when alleged defamatory statements are used under certain circumstances and contexts.
When a suit is filed for defamation of character, the plaintiff is accusing the defendant of making false statements intended to hurt the plaintiff's reputation.
Under the absolute privilege defense, the defendant claims that the alleged statements are protected due to the circumstance under which the statement was made.
What is Defamation of Character?
Defamation of character occurs when a person harms another persons reputation by making a false statement to another person or group of people.
Is an attorney protected from liability for defamation for statements made in court?
For example, prosecuting attorneys are protected against a defamation suit for statements made during the course of a trial.
If a prosecutor tells a jury that Sam, the defendant, is murder, then he is protected liability for defamation in the case that Sam is acquitted.
If Sam is found not guilty, the absolute privilege defense protects the prosecutor for the statements he made during the course of the trial.
Is a politician protected from liability for defamatory statements made in speeches?
Politicians are protected by absolute privilege is during political addresses, like speeches, or political advertising.
This allows them to effectively debate and campaign without being subjected to frivolous, back-and-forth lawsuits between rivals.
What is Qualified Privilege?
Qualified privilege is another type of defense against certain types of lawsuits, but its protection is more limited than that of absolute privilege.
Qualified privilege is most commonly associated with protection afforded to the press and other media outlets against defamation lawsuits.
While it doesn't provide the grand-sweeping defense as absolute privilege, it still affords certain occupations the protection they need to do their jobs effectively.
Other examples of parties that may be protected by qualified privilege are employers, reviewers, critics, and certain governing bodies.
What is Absolute Privilege Not testify against a spouse?
Absolute privilege also applies under federal law and under some states' law to protect "privileged communications" between spouses and "testimonial privilege" of a person to refuse to testify against their spouse.
The confidential communication privilege allows the witness or the accused to refrain from testifying about confidential communications during the marriage.
The testimonial privilege allows the witness spouse to refuse to testify against his or her spouse.
Academic Research
- Reconsidering the Litigator'sAbsolute PrivilegetoDefame, Hayden, P. T. (1993). Ohio St. LJ,54, 985.
- AbsoluteImmunity inDefamation: Judicial Proceedings, Veeder, V. V. (1909). Columbia Law Review,9(6), 463-491.
- AbsoluteImmunity inDefamation: Legislative and Executive Proceedings, Veeder, V. V. (1910). Columbia Law Review,10(2), 131-146.
- DefamationActions Arising from Arbitration and Related Dispute Resolution Procedures-Preemption, Collateral Estoppel andPrivilege: Why theAbsolute Privilege, Lewis, J. B., & Cole, L. J. (1995).
- TheAbsolute Privilegeis Not a License toDefame, Jernigan, C. L. (1999). J. Legal Prof.,23, 359.
- Extension ofAbsolute PrivilegetoDefamationin Arbitration Proceedings-Sturdivant v. Seaboard Service System, LTD., Andrle Jr, W. J. (1983). LTD.Cath. UL Rev.,33, 1073.
- Privileged Defamation, Harper, F. V. (1935). Va. L. Rev.,22, 642.
- Defamationand the Right of Privacy, Wade, J. W. (1961). Vand. L. Rev.,15, 1093.
- Defamation, Invasion of Privacy, and the Constitutional Standard of Care, Phillips, J. J. (1975). Santa Clara L. Rev.,16, 77.
