Qualified privilege is a form of legal privilege which allows people to make certain types of statements which might be considered defamatory in other settings, but are not because of the unique nature of the situation. This privilege is said to be “qualified” because people cannot abuse it; people with qualified privilege, in other words, cannot say whatever they want, but they enjoy certain freedoms in special situations.
For a communication to be considered protected by qualified privilege, someone must be making a statement about a subject he or she has an interest in to someone who shares that interest or concern. “Interest” in this sense means a legal interest, such as a moral or ethical duty, as opposed to a general interest. For example, when one employer calls another for a reference, that communication is covered under qualified privilege. Other professionals such as journalists, doctors, and lawyers are also protected.
In addition, the statement must be made in good faith, with all parties involved in taking a responsible attitude about how the statement is used. If one doctor discloses to another that a patient has syphilis as part of a routine records request, for example, this is a protected communication because it is made in good faith and in connection with professional duties. If, however, that statement was made in an area where members of the general public could hear it, it would no longer be protected. Likewise, statements cannot be made with malice. An employer who gives a poor reference with the goal of sabotaging a job opportunity is not protected by qualified privilege, for instance.
If someone has a right or duty to pass on information in connection with professional duties and someone later sues for defamation, qualified privilege can be used as a defense. The defendant must be able to show that the statement was made responsibly and without malice and that it was made as part of his or her work. Qualified privilege recognizes that there are situations in which people need to be able to communicate freely as part of their work and, as long as people do so responsibly, that worries about defamation should not be a barrier to professional communications.
People who are protected by qualified privilege as part of their work are not universally protected from defamation suits. In addition to being liable in situations which do not meet the standard to be considered situations in which qualified privilege was in play, these individuals are also liable for statements which are not made in a professional setting.