Absolute Privilege as a Defense Against a Defamation Claim

Absolute Privilege for Legislators
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Sam was a witness in a criminal case, and despite his damaging testimony, Ralph was found not guilty. Can Ralph sue Sam for defamation? 

In another trial, the prosecutor said in court, "Quentin is a murderer." Quentin, too, was given a not guilty verdict. Can he sue that attorney? 

In each of these cases, the person making the statement is protected from becoming a defendant in a defamation lawsuit because of the right of absolute privilege. 

In this article, we'll look at defamation, (libel and slander) lawsuits, and the defenses against defamation. Then we'll focus on absolute privilege as a defense against such a lawsuit. 

What is Defamation?

Defamation is the act of harming the reputation of another by making a false statement to another person. The act of defamation may be a false written statement or a false oral statement, through charges of libel and slander. Libel is the legal term for a written defamatory statement; slander is the legal term for an oral statement.

In order for a statement to be defamatory, it must be both false and communicated to others. In the U.S., the person making the accusation of defamation (the plaintiff), the person who has allegedly been defamed, has the burden of proof. 

Defamation cases have been typically heard under state laws, but the increase in online cases has extended state jurisdiction beyond state borders.

Defenses Against Defamation

Defendants typically have several defenses against a charge of defamation. The truth is said to be the best defense against defamation; if the statement against another can be shown to be true, there is no defamation. The plaintiff must also show that harm has been done to the plaintiff's reputation, usually measured in economic terms. The plaintiff cannot be shown to have consented to the statement (by giving an interview. 


Privilege is a special legal right or immunity granted to a person or persons. Absolute privilege is an immunity from lawsuit, usually a lawsuit for defamation, and there must be proof that the statement was communicated to others. 

The defense of privilege is intended to balance the interest of the person defamed in protecting their reputation against the interest of the person communicating and public in having the information communicated.

Absolute Privilege as a Defamation Defense

Privilege, or immunity, is also a defense against a claim of defamation. Absolute privilege is an old common-law privilege that protects members of lawmaking bodies from charges of defamation for statements made "on the floor" of their legislative bodies, without regard for whether the words are stated in good faith. 

One type of absolute privilege called litigation privilege is an example of what's called complete defense, meaning that it nullifies (cancels) the entire case against the defendant. For this reason, the types of communications that can be protected by this type of privilege are narrow. Litigation privilege generally only extends to defamatory statements made by parties involved in a lawsuit. It includes out-of-court statements between the attorneys for the two parties, attorneys and their clients, and attorneys representing different plaintiffs in one trial.

In addition, reports of proceedings of legislative bodies have absolute privilege, as do communications in the context of arbitration proceedings and communications between participants in collective bargaining processes. 

Examples of Absolute Privilege 

An example of absolute privilege is the ability of legislators to have immunity for actions and statements made during debates and in the course of their legislative work, without fear of being sued for defamation.

In addition to the cases above, there are two other special cases of absolute privilege: 

  • Political speech and ads
  • Communication between spouses

Absolute Privilege vs. Qualified Privilege

Absolute privilege should not be confused with qualified privilege, which protects the person from a lawsuit in certain circumstances and examples, including the press, some governmental bodies, employers, and reviewers. Qualified privilege is no protection against actual malice. Absolute privilege, an absolute privilege, protects the speaker even if the speech is false and malicious. 

Disclaimer. The information in this article is intended to be a general overview and not legal advice. If you are considering filing a defamation lawsuit, consult an attorney first.