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August 01, 2018

Claims of absolute privilege and qualified privilege as a defense in lawsuits alleging defamation


Claims of absolute privilege and qualified privilege as a defense in lawsuits alleging defamation
Stega v New York Downtown Hosp., 2018 NY Slip Op 04687, Court of Appeals

Immunity as a defense in lawsuits alleging the plaintiff was defamed by the respondent are well established. In Liberman v Gelstein, 80 NY2d 429, the Court of Appeals noted that the public interest is served by shielding certain communications, though possibly defamatory, from litigation, rather than risk stifling them altogether. The court explained that free speech or the discharge of governmental responsibility "sometimes outweighs the individual's underlying right to a good reputation, the individual's right may have to yield to a privilege granted the speaker barring recovery of damages for the defamatory statements."

Absolute privilege entirely immunizes an individual from liability in a defamation action, regardless of the declarant's motives and is generally reserved for communications made by "individuals participating in a public function, such as judicial, legislative, or executive proceedings."

In contrast, a qualified or conditional privilege may protect a defendant being sued for defamation in situations where "it is fairly made by a person in the discharge of some public or private duty, legal or moral, or in the conduct of his own affairs, in a matter where his [or her] interest is concerned."

However, statements made with "spite or ill will" or reckless disregard of whether they were false or not are not protected by this form of conditional privilege if the plaintiff meets his or her burden of proof by showing malice on the part of the defendant in making the statement.

In the words of the Stega court, "Whether allegedly defamatory statements are subject to an absolute or a qualified privilege 'depend[s] on the occasion and the position or status of the speaker' [and] a complex assessment that must take into account the specific character of the proceeding in which the communication is made [and as a matter of policy] the courts confine absolute privilege to a very few situations."

Those limits were the subject of the primary dispute before the Court of Appeals in this action.

Supreme Court had granted the defendants' motion to dismiss certain aspects of plaintiff's complaint but had permitted the plaintiff's defamation claim against certain defendants to survive, reasoning that the statements at issue were not shielded by an absolute privilege, because the investigation in which they had been made "had none of the indicia of a quasi-judicial proceeding, and in particular lacked safeguards such as an adversarial procedure or a determination subject to review."

Supreme Court also commented that plaintiff was not a "participant[] in the investigation, which was not an adversarial process; nor could [she] challenge the statements made about [her]. That it was an official governmental investigation conducted by a regulatory agency does not by itself make it a quasi-judicial function."

As to whether the statements were instead subject to a qualified or conditional privilege, Supreme Court declared that issue "premature on a motion to dismiss."

Defendants appealed the Supreme Court's ruling. The Appellate Division reversed the lower court's determination but granted plaintiff's leave to appeal, "certifying the question whether its order was properly made."

The Court of Appeals observed that its decision in Rosenberg v Metlife, Inc. (8 NY3d 359, does not shield statements made in an administrative proceeding that allegedly defame a person who has no recourse to challenge the accusations. In the words of the court, "The absolute privilege against defamation applied to communications in certain administrative proceedings is not a license to destroy a person's character by means of false, defamatory statements."

The Appellate Division was reversed, with costs, the defendants' CPLR §3211 motion seeking to dismiss the claim as against them, denied, and the certified question "answered in the negative."

It appears that the matter will be remanded to Supreme Court to consider whether defendants' statements are protected by a "qualified or conditional privilege."

The decision is posted on the Internet at:

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