Privilege, which protects a person from legal responsibility for a wrongful act, most commonly exists in the area of defamation claims. The two types of privilege are absolute privilege and qualified privilege.
Absolute privilege means the speaker is entitled to make a statement even though it may be defamatory (damaging to someone's reputation). Absolute privilege completely protects someone from liability for any tort they commit within a certain scope, generally by reason of an office they hold or a relationship they are in. Examples include comments made by legislators on the floor of Congress or another lawmaking body, in court during legal or judicial proceedings, and between spouses.
Reasons for absolute privilege include the nature of the communications being protected. For example, political leaders need freedom to make laws and carry out their duties, as long as they are within the confines of the legal system, without fear of being sued for political purposes. In legal proceedings, judges, litigants, and lawyers need to be free to make statements and advance legal arguments without fear of suit. And finally, the spousal privilege protects these communications given the close personal relationship between spouses.
A qualified privilege protects someone from liability for torts they commit, usually by reason of an office the person holds or an action they commit, but qualified privilege offers less protection than absolute privilege. There may be a standard of behavior the person had to meet in order to be granted this privilege. There are several types of qualified privileges.
First, a qualified privilege may be a statement made by lower government officials, such as members of town or local governments or boards, made while in the context of their employment as a government official. This is in the public interest because it promotes a fair exchange of information in the government process.
Second, a qualified privilege may exist for citizen testimony given during legislative proceedings. The theory here is that the government wants to promote a free exchange of ideas when deciding whether to enact a law.
Third, a qualified privilege may exist for statements made in self-defense or to warn others of some form of harm. This provides protection to those who are trying to avoid harm or trying to help others avoid it.
Fourth, certain types of employment references could be subject to a qualified privilege. For example, if a prospective employer asks a former employer about a prospective employee, there is a strong public interest that the prior employer should be free to speak about the employment relationship. In practice, however, employers fear defamation claims from former employees and thus often only verify past employment duration and job title when asked about former employees.
Fifth, a qualified privilege could exist for film or book reviews, as the public needs fair and accurate reviews.
Finally, a qualified privilege may exist for statements made in certain types of governmental reports of proceedings occurring within that government.
In all these cases, the public good requires the speaker be able to freely convey ideas without fear of being sued.
Absolute Privilege versus Qualified Privilege
|Absolute Privilege||Qualified Privilege|
|The speaker is absolutely entitled to make a statement even though it may be defamatory.||The person making the statement may have some right to make the statement despite its defamatory nature.|
|Examples: Statements by legislators, or political leaders; statements made during legal or judicial proceedings, or between spouses||Examples: Statements by lower government officials; also, statements made during legislative proceedings, in an employment setting, in film reviews, or in government reports|