Understanding the Common Interest Privilege
Based on innumerable calls, and witnessing defamation actions brought by attorneys unfamiliar with privileged speech, it is clear that a discussion of the Common Interest Privilege is in order.
Let’s begin at the beginning, namely, the elements of a defamation claim. To prove a claim for defamation, the plaintiff must prove: (a) a publication that is (b) false, (c) defamatory, and (d) unprivileged, and that (e) has a natural tendency to injure or that causes special damage. Each of those elements requires further explanation, but today we are focusing on the “unprivileged” element; perhaps the most misunderstood of the elements based on the inquiries we receive.
Certain categories of speech are privileged for various public policy reasons, and are set forth primarily in Civil Code § 47. Here are some examples from that section.
A privileged publication or broadcast is one made:
(a) In the proper discharge of an official duty.
(b) In any (1) legislative proceeding, (2) judicial proceeding, (3) in any other official proceeding authorized by law, or (4) in the initiation or course of any other proceeding authorized by law . . ., except as follows:
. . .(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 applies to and includes a complaint of sexual harassment by an employee, without malice, to an employer based upon credible evidence and communications between the employer and interested persons, without malice, regarding a complaint of sexual harassment. This subdivision authorizes a current or former employer, or the employer’s agent, to answer, without malice, whether or not the employer would rehire a current or former employee and whether the decision to not rehire is based upon the employer’s determination that the former employee engaged in sexual harassment. This subdivision does 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.
Section 47(c) codifies the Common Interest Privilege, and it is very broad privilege. The statute is long and there is a lot to absorb, but in its simplest terms, Section 47(c) extends a conditional privilege against defamation to communications made without malice on subjects of mutual interest.
The most common example of callers who want to sue for defamation, where it is almost certain that a defamation claim would fail due to the Common Interest Privilege, involve claims of sexual harassment in the workplace. Typically, the facts are that a man said something to a woman that she found inappropriate, she complains to Human Resources, and he suffers some adverse job action as a result, from demotion to termination. He is convinced that no reasonable person could have taken what he said as sexual harassment, and wants to sue his coworker and/or the company for defamation. Continue reading
