Under Virginia law, an absolute privilege protects speakers and writers from defamation claims when their statements are made in certain contexts. Absolute privilege will apply if the statement claimed to be defamatory was made in connection with (1) judicial proceedings (including preliminary proceedings sufficiently related to judicial proceedings); (2) proceedings before the Virginia Employment Commission; (3) proceedings of bodies creating legislation; or (4) military or navel communications among officers, provided the statement was relevant and pertinent to the matter under inquiry. If the absolute privilege does apply, the statement is completely immune, even if knowingly false and made maliciously. The maker of an absolutely privileged communication is accorded complete protection against defamation claims. (See Lindeman v. Lesnick, 268 Va. 532, 537 (2004)). This is far stronger protection than offered by qualified privilege, which provides only limited protection that can be defeated upon a showing of malice or other bad faith. Absolute privilege is an affirmative defense that can be raised in an answer or plea in bar. As with other affirmative defenses, absolute privilege should not be presented to the court by demurrer, as demurrers test only the facial validity of the allegations in a complaint. (See Givago Growth, LLC v. iTech AG, LLC (Va. 2021)).
By far the most common situation in which absolute privilege is invoked involves statements made in the course of a judicial proceeding. If someone lies about you in court, you can’t turn around and sue the person for slander. The adversarial judicial system is designed to allow fact finders to consider the evidence and determine the truth, and it’s a given that not every statement made by testifying witnesses in court will be truthful. There are also potential penalties for perjury for untrue statements made in court. For these and other reasons, Virginia courts have long held that statements made in connection with judicial proceedings are protected by an absolute “judicial privilege” against defamation liability when they are relevant and pertinent to the matter under inquiry. (See Darnell v. Davis, 190 Va. 701, 707 (1950)). The absolute judicial privilege protects not only witness statements made orally in court, but all statements in connection with the proceeding, including pleadings and statements made during depositions and discovery.
Even before a lawsuit is filed, the absolute judicial privilege may be applicable. In 2012, the Virginia Supreme Court held in Mansfield v. Bernabei that statements preliminary to a judicial proceeding will be absolutely privileged from defamation liability where (1) the statement is made preliminary to a proposed judicial proceeding; (2) the statement is “material, relevant or pertinent” to the proceeding; (3) the proceeding is contemplated in good faith and is under serious consideration; and (4) the communication is disclosed only to persons having an interest in the proposed proceeding. Thus, demand letters written by lawyers in which litigation is threatened may qualify for protection, as well as draft complaints sent to an adverse party prior to actually being filed with a court. At least one federal court has found absolute privilege applicable to statements made in the course of a human-resources investigation.
Certain quasi-judicial proceedings may also qualify for the absolute judicial privilege. On April 8, 2021, the Virginia Supreme Court held that “Code § 60.2-623(B) grants absolute privilege to statements made during VEC proceedings.” (See Bryant-Shannon v. Hampton Roads Community Action Program, Inc.) The court based its reasoning primarily on the fact that proceedings before the Virginia Employment Commission are confidential by statute. Section 60.2-623(B) provides that “Information furnished the Commission” may not “be used in any judicial…proceeding other than one arising out of the provisions of this title.” In other words, if the plaintiff is pursuing a defamation case, it can’t be based on evidence provided at a VEC hearing.
The rule of absolute privilege “is broad and comprehensive, including within its scope all proceedings of a judicial nature whether pending in some court of justice, or before a tribunal or officer clothed with judicial or quasi-judicial powers,” and includes “any proceeding for the purpose of obtaining such remedy as the law allows.” Penick v. Ratcliffe, 149 Va. 618, 627-28 (1927).
Virginia courts apply a very liberal standard with respect to the degree of relevance a statement must have to gain the protection of absolute judicial privilege. “Thus, the matter to which the privilege does not extend must be so palpably wanting in relation to the subject matter of the controversy that no reasonable man can doubt its irrelevancy and impropriety.” Penick, 149 Va. at 635.