Statements made by litigants and their attorneys in judicial proceedings cannot form the basis for a defamation action because they are protected by an absolute privilege. But what if an attorney, desirous of increased media exposure, takes copies of what might otherwise be considered slanderous statements and forwards them to the media? Do statements made in judicial proceedings lose their privileged status when republished to third parties? The answer, according to Norfolk judge Charles E. Poston, is that it depends on whether the attorney acted with malice.
In D'Alfio v. Theuer, a sea captain sued a lawyer who had filed at least one lawsuit against him on behalf of a client claiming employment discrimination. The lawsuit, the sea captain contended, contained numerous false and defamatory allegations, such as that the captain had ordered a seaman on his ship to be handcuffed in retaliation for speaking to a newspaper reporter and that he had threatened to put him in a straightjacket. What the captain found particularly troublesome, however, was that the seaman's lawyer faxed a copy of the lawsuit to the media. He sued the lawyer for defamation.
The lawyer filed a "demurrer" (essentially a motion to dismiss the complaint) on the ground that the allegedly defamatory statements were protected by absolute or qualified privilege. Judge Poston overruled the demurrer and permitted the lawsuit to proceed.
An absolute privilege provides complete immunity from liability, even if the communication is made with malice and knowledge of falsity. Lindeman v. Lesnick, 268 Va. 532, 537 (2004). A qualified privilege, on the other hand, provides communications a limited privilege that can be defeated upon a showing of malice by clear and convincing evidence. Penick v. Ratcliffe, 149 Va. 618, 636 (1927). The court quickly disposed of the absolute-privilege argument, because the statements, while originally made in the course of a judicial proceeding, had been republished to the media, and it was that republication that formed the basis of the complaint's allegations.
The court found, however, that republication of pleadings does enjoy qualified protection, provided that the pleadings were public records at time they were sent to the media and that they were either copied verbatim, or extracted or summarized in a fair and accurate manner. The court noted Virginia Supreme Court precedent which held that "the publication of public records to which everyone has a right of access is privileged." The question thus became whether the attorney who forwarded the statements to the press did so maliciously.
A plaintiff seeking to overcome a qualified privilege must demonstrate that the defendant acted with actual malice at the time of publication, or with a "sinister or corrupt motive such as hatred, revenge, personal spite, ill will, or desire to injure the plaintiff," or that the defendant acted "with such gross indifference and recklessness as to amount to a wanton or willful disregard of the rights of the plaintiff." Preston v. Land, 220 Va. 118, 120-21 (1979). Because the plaintiff's complaint contained numerous allegations of malice, and because the question of whether a defendant acted with malice sufficient to overcome a privilege is a question of fact to be decided by the jury, the court overruled the demurrer and permitted the action to go forward.