It’s never a good idea to slander another person, but in some circumstances a privilege may apply to a defamatory statement that exempts the statement from any libel or slander claims. Statements made on the witness stand in a legal proceeding, for example, are immune from defamation claims (even if they are false). The justice system is designed to sort out which witnesses are lying and which are telling the truth; it doesn’t permit an aggrieved individual to sue witnesses who offered unfavorable testimony during the trial. In other contexts, a “qualified” privilege may apply to the communication. In these situations, the privilege is not absolute and will be forfeited if abused. A qualified privilege generally attaches to communications between persons on a subject in which the persons share an interest or duty. For example, consider the employee performance review, where the person completing the review form and the person receiving it both share an interest or duty in the review being conducted. In situations like these, the reviewer is generally permitted–and expected–to include whatever negative feedback may be appropriate without having to worry about getting sued by the employee for defamation. However, this privilege is not absolute; a qualified privilege does not give the reviewer a license to maliciously defame another individual with impunity.
Defamatory words uttered with malice will not be protected by qualified privilege. This means that a plaintiff may often be able to pursue a defamation claim even when the claim is based on a statement made in a privileged context. A plaintiff can overcome the qualified privilege with clear and convincing evidence that the defendant made the statement with “malice” (not to be confused with “actual malice.”) Malice in this context can be shown in a variety of ways, such as a showing that (1) the statements were made with knowledge that they were false or with reckless disregard for their truth; (2) the statements were communicated to third parties who have no duty or interest in the subject matter; (3) the statements were motivated by personal spite or ill will; (4) the statements included strong or violent language disproportionate to the occasion; or (5) the statements were not made in good faith. (See Cashion v. Smith, 286 Va. 327, 339 (2013)).