Qualified Privilege

By Timothy Broderick, Lawyer at Broderick Saleen Law Firm

California Civil Code Section 47(c) grants a conditional privilege against defamation to communications made without malice on subjects of mutual interest. A communication or publication is privileged if it is made “without malice, to a person interested herein, (1) by one who is also interested, or (2) by one who stands in such a relation to the person interested as to afford a reasonable ground for supposing the motive for the communication to be innocent, or (3) who is requested by the person interested to give the information.” Section 47 (c) is largely designed to protect managers who discuss the performance of an employee from defamation claims, unless the person speaking acted with “malice”.

Malice is defined as a state of mind arising from hatred or ill well, evidencing a willingness to vex, annoy or injure another person.

The jury instruction for the qualified privilege under California Civil Code Section 47(c) concerning interested parties reads as follows:

Under the circumstances of this case, the plaintiff cannot recover damages from the defendant, even if the statement was false, unless he also proves that the defendant acted with hatred or ill will toward him. If the defendant acted without reasonable grounds for believing the truth of the statement, this is a factor you may consider in determining whether he acted with hatred or ill will toward the plaintiff.

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