Absolute Privilege (Legal) Definition
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.
A Little More on What Absolute Privilege
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.
Defamation of character occurs when a person harms another person’s reputation by making a false statement to another person or group of people. 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. It doesn’t matter that the statements were untrue or if they damage Sam’s reputation, the prosecutor was just doing his job so he’s not culpable. Even though the statements made by the prosecutor technically qualify as defamation, she is still protected. That’s the reason the absolute privilege was put into law, so people like the prosecutor can do their duty without fear of prosecution.
Another example of instances when people are protected by absolute privilege is during political addresses, like speeches, or political advertising. When politicians campaign against one another, things can get ugly. It’s common for politics to get dirty but, thanks to absolute privilege, politicians are protected so they can effectively debate and campaign without being subjected to frivolous, back-and-forth lawsuits between rivals.
Absolute privilege also applies to marital confidentiality. It’s common knowledge that communication between spouses is protected. Spouses cannot be forced to testify against each other in legal proceedings and, even if one of the parties was to violate such confidentiality willingly, the statements would be inadmissible in court. For example, if Mr. Smith is being investigated for racketeering. During the state’s investigation, Mr. Smith’s ex-wife comes forward and offers to testify that Mr. Smith admitted to engaging in illegal activities during the course of their marriage. Though it may sound like the prosecution just found their star witness, they couldn’t use her testimony in court. The conversations between Mr. and Mrs. Smith during the course of their marriage are protected by absolute privilege and can’t be used again Mr. Smith, even though they are no longer married.
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.
References for Absolute Privilege
Academic Research for Absolute Privilege
- Reconsidering the Litigator’s Absolute Privilege to Defame, Hayden, P. T. (1993). Ohio St. LJ, 54, 985.
- Absolute Immunity in Defamation: Judicial Proceedings, Veeder, V. V. (1909). Columbia Law Review, 9(6), 463-491.
- Absolute Immunity in Defamation: Legislative and Executive Proceedings, Veeder, V. V. (1910). Columbia Law Review, 10(2), 131-146.
- Defamation Actions Arising from Arbitration and Related Dispute Resolution Procedures-Preemption, Collateral Estoppel and Privilege: Why the Absolute Privilege …, Lewis, J. B., & Cole, L. J. (1995).
- The Absolute Privilege is Not a License to Defame, Jernigan, C. L. (1999). J. Legal Prof., 23, 359.
- Extension of Absolute Privilege to Defamation in 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.
- Defamation and 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.