Definition and Purpose

Privileged communication provides protection against liability, particularly in the context of defamation crimes like libel and slander. Its purpose is to shield certain statements made in specific circumstances from being the basis of criminal prosecution. The rationale includes encouraging free expression in legislative and judicial contexts and protecting the public interest, such as promoting public welfare and ensuring accountability of public officials.

Types of Privileged Communication

Sources identify two main types of privileged communication:

• Absolutely Privileged Communication: This type of communication is not actionable, even if the person making the statement acted in bad faith. Malice is presumed absent.
  • Examples include statements made by members of Congress in the discharge of their functions.
  • Official communications made by public officers in the performance of their duties.
  • Statements in judicial proceedings, such as those by parties or counsel in pleadings, motions, or hearings.
  • Answers given by witnesses in reply to questions propounded to them in legal proceedings.
  • Pleadings are considered absolutely privileged, provided they are relevant, material, and pertinent to the issue.
• Qualified (Conditionally) Privileged Communication: This type of communication is susceptible to a finding of libel if actual malice is proven. Malice in law is not presumed; instead, actual malice must be shown by the prosecution.
  • Examples include a private communication made by any person to another in the performance of any legal, moral, or social duty, or a fair and true report made in good faith without comments or remarks, of any judicial, legislative, or other official proceedings which are not confidential.
  • Fair commentaries on matters of public interest are considered qualified privileged communications.

Effect on Proof of Malice

For privileged communications, especially those that are qualifiedly privileged, the presumption of malice is overcome. This means the prosecution bears the burden of proving actual malice. Actual malice requires showing that the defamatory imputation was made with knowledge that it was false or with reckless disregard for whether it was false or not. Excessive scrutiny should not be applied to privileged communication to find grounds for malice, as this would defeat the protection.