Understanding the Common Interest Privilege

Woman talking to man

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 a 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. 

Alternatively, also in the employment context, the caller applies for a job and is rejected based on what a previous employer communicated to the prospective employer. The rejected employee claims that the information provided by the former employer is false, and wants to sue for defamation to recover all the wages they lost as a result of being rejected for the job.

Let’s use an actual case to see how potential defamation claims interact with the Common Interest Privilege.

In Vackar v. Package Machinery Co., the eventual plaintiff, Vackar, went to a General Mills plant to train their employees on the use of certain equipment manufactured by Eagle. After the training was completed, two female employees complained to Human Resources, alleging that Vackar “had made a number of inappropriate comments about women and sex during the training sessions and that such comments had offended them.” For example, it was alleged that while “responding to a female trainee who was asking a question, he stated that he was ‘feeling her out’ and gestured as though he were feeling her breasts.”

General Mills investigated the matter, and purportedly received confirmation of the allegations from multiple people who had attended the training. Mr. Breton, a representative of General Mills, called Eagle, Vackar’s employer, relayed what had been alleged, and asked that Vackar not return to the General Mills facility. Breton also called Vackar directly to tell him not to return.

Vackar sued both General Mills and Breton, for Defamation and Negligent Investigation. He alleged that Breton’s statements to Eagle were slanderous, and that the statements were the product of a negligent investigation. General Mills brought a motion for summary judgment, claiming that the statements were privileged under the Common Interest Privilege.

The Motion for Summary Judgment.

To prevail on a motion for summary judgment, the moving party must show that there are no triable issues of material fact. Counsel for Vackar likely felt that there was little chance that summary judgment would granted. He was not suing the employees who accused him of the improper comments, but repeating a defamatory comment is still defamation. If the employees lied about what was said, and Breton repeated those lies to Eagle, Breton would be liable if no privilege applied. So if Vackar presented a declaration stating that he had not said the things he was accused of saying, and the General Mills employees said that he did, that is a triable issue of fact, and the motion would have to be denied.

But as is so often the case, counsel for Vackar probably failed to realize that because of the Common Interest Privilege, the motion did not turn on the truth or falsity of the statements. Falsity is one element of defamation, but the statement must be unprivileged. Whether the statements were false need not be determined if they were privileged. And if they fell under the Common Interest Privilege, then plaintiff must prove they were made with malice.

The Court’s analysis.

Defendants claim that Mr. Breton’s allegedly defamatory statements are protected by Civil Code section 47(c), which provides a qualified privilege for communications made without malice in the common interest of speaker and listener. That section provides, in pertinent part: “A privileged publication is one made … (c) [i]n 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….”

It is implicit in the case law definition of malice that it is the speaker’s state of mind that matters, not that of his source. Courts have held that the malice required to vitiate the privilege of section 47(c) consists in either the New York Times standard of knowledge of falsity or reckless disregard for truth or the older common law standard of actual ill will. Mere negligence in investigating the truth of the allegedly defamatory statements is insufficient to establish malice.

Inherent in the concept of reckless disregard for truth is the notion that it is the speaker’s belief regarding the accuracy of his statements, rather than the truth of the underlying statements themselves, that is relevant to the malice determination. The recklessness standard would be meaningless if ill will on the part of the original source of the communication automatically defeated the privilege. Rather, such ill will defeats the speaker-republisher’s privilege under section 47(c) only if it raises an inference that the speaker acted with reckless disregard, for example by republishing the contents of the communication while entertaining doubts about their accuracy. Such is not the case here; there is no evidence that Mr. Breton had any reason to suspect improper motivation on the part of the trainee-complainants. On the contrary, the corroboration of the complaints by the eight other trainees who were interviewed gave Mr. Breton every reason to regard the complaints as true.

In addition to being contrary to the state of the law, plaintiff’s proposed standard would eviscerate a republishing speaker’s privilege under section 47 to make statements in furtherance of a common interest. Such a result would effectively disable supervisors in all cases from acting on the apparently credible complaints of their employees and, therefore, runs afoul of public policy.

Callers with similar scenarios almost always complain that the company should be held liable for failing to conduct a more detailed investigation. They often report that the company never even contacted them to hear their side of the story. The court in Vackar rejected the “Negligent Investigation” claim in very short order:

In his third cause of action plaintiff reiterates the allegations set forth in support of his defamation cause of action and claims that these facts support a finding of negligent investigation. Summary judgment is appropriate on this claim for two reasons. First, because the allegations of negligence are embraced by plaintiff’s defamation claim, the privilege provisions of section 47(c) preclude a finding of liability. Alternatively, California courts have held that plaintiffs may not avoid the strictures of defamation law by artfully pleading their defamation claims to sound in other areas of tort law. Allowing plaintiffs to sue in negligence where their underlying claims sound in defamation would invite disingenuous attempts to evade the strictures of defamation law by pleading, for example, that the alleged defamer was negligent in investigating the truth of his statements or in republishing them.

For these reasons, the court granted summary judgment and dismissed the case. Clearly an employer would want to know about any problems with an employees’ job performance, so the statements by General Mills to Eagle fell under the Common Interest Privilege. Thus, the analysis was then no longer related to the truth or falsity of the statements, or the investigation of those statements, but rather whether Vackar could prove that Breton had acted with malice. Since Breton was merely passing along what the employees had reported, and had done sufficient investigation so that it could not be said that he was acting with reckless disregard for the truth, the Common Interest Privilege eliminated any possible claim.

Bottom line: The Common Interest Privilege is very broad, and can be a trap for the unwary. Although Civil Code section 47 carves out specific privileges in the employment context, the Common Interest Privilege can arise in any situation where the speaker has reason to believe that the listener would want to know the information (beyond mere idle curiosity). For example, in one case, during a custody battle, a mother told several teachers at a school that her children’s father should not be permitted to help out in class due to his violent nature. He sued for defamation, and the court found that the statements were privileged under the Common Interest Privilege because the teachers would want to know that information. However, the defamation action was allowed to proceed as to some of the statements because the mother had “over-published” the information. She had gone to teachers who did not have the children in their classes, and hence the father would not have been utilized in those classes. There was no reason to believe that those teachers would be interested in the information, and therefore the statements to those teachers were not privileged.

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Aaron Morris
Morris & Stone, LLP
Orchard Technology Park
11 Orchard Road, Suite 106
Lake Forest, CA 92630
(714) 954-0700

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