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)).
Defendants will often move to dismiss defamation claims against them when the statements at issue are protected by the law of qualified privilege. This strategy rarely succeeds, however, because a trial is usually necessary to determine whether the privilege may have been lost or abused. Courts decide whether a communication is privileged. Juries decide whether a qualified privilege has been lost or abused. Therefore, any time a plaintiff makes plausible allegations that a defendant acted with ill-will or other malice, the court will not likely grant a motion to dismiss the defamation claim in advance of trial.
These principles were on display in the case of Pamela Smith v. School Board for City of Norfolk, in an opinion decided just over a year ago. The facts of the case, as alleged in the pleadings, go something like this. Pamela Smith was employed by Norfolk Public Schools (“NPS”), working as an office manager for the Principal of Ghent Elementary School. Part of her job duties involved handling money at the Principal’s direction. According to Ms. Smith, the Principal was sloppy with her management of the school’s money and sought to blame the school’s money troubles on her. While Ms. Smith was out on family medical leave, an audit and financial investigation were conducted. When she returned, she was immediately asked to leave the premises and placed on administrative leave. The Principal then asked teachers and staff to “fill out forms asserting that Ms. Smith had mishandled receipts and embezzled funds.” This, she argued, was defamation.
The court agreed that these allegations, if true, would present a valid claim of defamation. False accusations of embezzlement are defamatory per se. The court declined to rule explicitly that the statements were covered by a qualified privilege but found that qualified privilege could not be used as a basis for dismissal of the case because Ms. Smith had plausibly alleged facts establishing that words were spoken with malice and ill-will. The court noted that Ms. Smith had alleged that the Principal defamed her in order to redirect blame for her own financial mismanagement and alleged that the Executive Director of Human Resources repeated and circulated the false accusations with knowledge of their falsity or at least reckless disregard for the truth.
For these reasons, the court denied the motion to dismiss the defamation claim, allowing it to proceed to trial so that a jury could determine whether any qualified privileged was lost or abused.