One hears it all the time when an ex employer is asked for a reference. The ex employer expresses fear that if there is any inaccuracy in the response, a suit for libel or slander will ensue. However, California law provides a specific protection for errors in statements made in specified business and mutual interest situations which allows the honest mistake to avoid liability. This particular privilege is specified in Sections 47 and 48 of the California Civil Code and is the topic of this article.
The reader will have been presumed to have already read the article on Slander and Libel before reading this article.
Communication of a harmful untrue statement constitutes “publication” or “broadcast” of libel or slander. However, no liability attaches to certain libels and slanders unless done intentionally and with malice.
Civil Code section 47 reads as follows (emphasis added):
§ 47. A privileged publication or broadcast is one made:
(c) In a communication, without malice, to a person interested therein,
(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.
This subdivision applies to and includes a communication concerning the job performance or qualifications of an applicant for employment, based upon credible evidence, made without malice, by a current or former employer of the applicant to, and upon request of, one whom the employer reasonably believes is a prospective employer of the applicant. This subdivision authorizes a current or former employer, or the employer's agent, to answer whether or not the employer would rehire a current or former employee. This subdivision shall not apply to a communication concerning the speech or activities of an applicant for employment if the speech or activities are constitutionally protected, or otherwise protected by Section 527.3 of the Code of Civil Procedure or any other provision of law.
There is another statute, Civil Code section 48, which provides that malice cannot be inferred from the communication alone:
§ 48. Malice not inferred in specified privileged communication
In the case provided for in subdivision (c) of Section 47, malice is not inferred from the communication.
Thus, once the privilege is demonstrated by the defendant, it is up to the plaintiff to overcome the privileged by demonstrating “malice.”
California courts have held that the defendant generally bears the initial burden of establishing that the statement alleged to be qualifiedly privileged was made on a privileged occasion, and thereafter the burden shifts to the plaintiff to establish that the statement was made with malice.
Taus v. Loftus (2007) 40 C.4th 683, 721.
What is Malice?
The word “malice” is a term of art. Malice in defamation cases means “actual” or “express” malice, hatred, or ill will, and not the fictional malice “implied by law” from the intentional doing of a wrongful act without just cause. (Frommoethelydo v. Fire Ins. Exchange (1986) 42 Cal.3d 208; Nova v. Flaherty (1956) 145 Cal.App.2d 761, 764; Manguso v. Oceanside Unified School Dist. (1984) 153 Cal.App.3d 574, 577, 580; see Noel v. River Hills Wilsons (2003) 113 Cal.App.4th 1363, 1371 [mere negligence, in the sense of oversight or unintentional error, is not alone enough to constitute malice].
Malice must be ill will beyond the normal feeling toward a wrongdoer, i.e., a motive different from that which makes the communication privileged. (DeMott v. Amalgamated Meat Cutters & Butcher Workmen of North America (1958) 157 Cal.App.2d 13, 26; see Biggins v. Hanson (1967) 252 Cal.App.2d 16, 20 [if defendant’s primary motive is advancement of the interest that the privilege protects and defendant speaks in good faith, the “mere fact that he harbors ill will toward the plaintiff should be a neutral factor”]. Ill will may be circumstantial evidence of malice, but it is not the equivalent of malice; there must be a link between the defendant’s hostility and an awareness of the probable falsity of the statements. (Live Oak Publishing Co. v. Cohagan (1991) 234 Cal.App.3d 1277, 1292.)
The qualified privilege is lost if the publication is motivated by hatred or ill will, or by any cause other than the desire to protect the interest for the protection of which the privilege is given. Brewer v. Second Baptist Church (1948) 32 Cal.2d 791.
The absence of extrinsic facts showing hatred or ill will is similarly not determinative. Malice may be inferred from facts showing a lack of reasonable or probable cause to believe in the truth of a defamatory statement. The privilege remains, however, where the interest protected by the privilege makes it reasonable to report rumors or statements that the publisher has no reasonable cause to believe or may even know are false, if he or she states the defamatory matter as a rumor or suspicion and not as fact.
Thus, a newspaper is privileged to print a fair report, attributed to a third party, of a claim of official misconduct denied by the official, and is under no duty to resolve conflicting claims. (Stockton Newspapers v. Superior Court (1988) 206 Cal.App.3d 966, 980.) it at some point.
Actual malice may be established either by direct proof of the defendant’s state of mind, or by circumstantial evidence from which the jury might infer it as a fact. (Fairfield v. Hagan (1967) 248 Cal.App.2d 194, 201; see McMann v. Wadler (1961) 189 Cal.App.2d 124, 129 [evidence of prior defamations of similar import]; Larrick v. Gilloon (1959) 176 Cal.App.2d 408, 416 [attack on officers of irrigation district by property owner; evidence of language and tenor of publications, threats of grand jury action, long continued controversy, and falsity of statements]; Mann v. Quality Old Time Service (2004) 120 Cal.App.4th 90, 108 [where parties were business competitors, it was not reasonable to assume that motive of defendant’s communication of alleged defamatory statements to plaintiff’s customers was innocent].
Note that the privilege is lost if the defendant knows the statement is false orhas no reasonable ground for belief in the truth of the statement. (Sanborn v. Chronicle Publishing Co. (1976) 18 Cal.3d 406, 413. But mere negligence in inquiring into facts, or blundering, is not enough to defeat the privilege. (Roemer v. Retail Credit Co. (1970) 3 Cal.App.3d 368, 371.)
“Common Interest” Requirement
There is not a great deal of law in California as to what constitutes a “common interest” pursuant to Civil Code section 47. Since there is not much guidance in the statute itself as to what constitutes a common interest, courts will look to case law, but the question as to whether a common interest exists is usually assumed in the case law.
There is a dearth of case law on what someone can say and remain within the privilege. The cases talk about malice but do not address the issue as to whether some statements may be within the privilege while others could be outside it.
In dicta, the California Supreme Court held in 1989 that the common interest was historically based on business and family relationships, basing that statement on a student note in the Stanford Law Review, who did a legislative history of the statute which dated back to 1872 and was lifted from New York’s identical statute. The California legislature cited two New York cases in the legislative history. Other than this statement, though, there do not appear to be any cases in California defining a family relationship as a common interest.
California courts have indicated that the qualified or conditional privilege is recognized where the communicator and the recipient have a common interest and the communication is of a kind reasonably calculated to protect or further that interest. Deaile v. General Telephone Co. of California (1974) 40 Cal.App.3d 841.
In 1994, the statute was amended to specifically include communications between a prospective employer and a former employer, at the urging of the Los Angeles Community Schools. .
As with so much regarding law, the myth of the massive judgment if one makes any mistake is usually untrue. The law usually is quite practical in its application in tort law and slander and libel are no exception. If there is an honest mistake in information imparted to someone who has an interest in knowing, this privilege likely applies. Nevertheless, the person making the error should quickly and fully correct any misinformation imparted and make a full retraction in most cases.