Abuse of Privilege

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Liability for publication of defamatory matter may be defeated by a privilege to publish the information at issue. While truth is an absolute defense to defamation, there are certain qualified immunities or privileges. For example, a person may be immune from a suit for defamation concerning comments made in court or to the police. Society wants to encourage frank and open communications to the police or in court without the fear of civil liability for defamation, thus, statements made in court, to police, to other investigative bodies carry certain protections.

Also protected by the qualified privilege are employers in some instances (when they fill out character references about an employee to a third party), and certain communications with credit agencies.

However, as the name implies, these “qualified” privileges are not absolute. See Sciandra v. Lynett, 409 Pa. 595, 187 A.2d 586 (1963). The privilege may be lost if the publisher exceeds the scope of his privilege by publishing the defamation to unauthorized parties, or if he acts with malice, i,e, a reckless or intentional disregard for the truth. It is a question of law whether privilege applies in a given case, but a question of fact for the jury whether a privilege has been abused. Montgomery v. City of Philadelphia, 392 Pa. 178, 140 A.2d 100 (1958); see also Smith v. Griffiths, 327 Pa.Super. 418, 476 A.2d 22 (1984).

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