Where available, the Doctrine of Absolute Privilege defeats a plaintiff's defamation claim

Where available, the Doctrine of Absolute Privilege defeats a plaintiff's defamation claim
Murphy v City of New York, 2008 NY Slip Op 31926(U), Supreme Court, New York County, Docket Number: 0106059/2006, Judge: Karen Smith [Not selected for publication in the Official Reports.]

Judge Smith said that “the privilege of absolute immunity is bestowed upon an official who is ‘a principal executive of State or local government or is entrusted by law with administrative or executive policy-making responsibilities of considerable dimension,'" and that this privilege “extends to those of subordinate rank who exercise delegated powers,” citing Firth v State of New York, 12 AD3d 907, lv to appeal denied, 4NY3d 709 and Ward Telecom. & Computer Services v State of New York, 42 NY2d 289.

In Firth, the New York Office the State Inspector General ”) was found to be cloaked with absolute immunity, where it had conducted an investigation of the Department of Environmental Conservation’s Law Enforcement Division and its subsequent report, allegedly containing defamatory statements about the Division’s former director, was later published on the Internet.

Among the most common situations where the issue of privilege is raised are those involving the employee alleging that internal communications between administrators or between an employee and an administrator concerning the worker contains defamatory statements. Murphy v Herfort, 428 NYS2d 117, is an example of litigation resulting from communications between administrators; Missek-Falkoff v Keller, 153 AD2d 841, is an example of a case where one employee sued another because of the contents of a memorandum from the second employee to a superior concerning a "problem" with the coworker.

This issue may also arise in connection with an employee's former employer supplying information to a prospective employer of the individual in response to a request for "references" (see Buxton v Plant City, 57 LW 2649). Unless malice is shown, the courts usually dispose of such a case by applying the doctrine of "qualified immunity."

In Tulloch v Coughlin, 50 F.3d 114, the US Circuit Court of Appeals, Second Circuit, considered the differences between “absolute immunity” and “qualified immunity.”

The difference is significant. Absolute immunity completely insulates an individual from civil law suits. In contrast, a qualified immunity protects the individual from liability only where the individual did not violate a person’s "clearly established" right.