LexUtah » Blog Archive » The Judicial Proceedings Privilege Is Broader Than You Think

The Judicial Proceedings Privilege Is Broader Than You Think

May 5th, 2009 6:47 pm | by Kenneth Reich | in Articles

The absolute privilege is very broad in scope and is perhaps under-appreciated by the bar. The Utah Supreme Court explained:

One of the absolute privileges is that granted to participants in judicial proceedings. The general rule is that judges, jurors, witnesses, litigants, and counsel in judicial proceedings have an absolute privilege against defamation. See 50 Am.Jur.2d Libel & Slander § 231 (1970); W. Prosser & P. Keeton, [The Law of Torts] § 114. This privilege is premised on the assumption that the integrity of the judicial system requires that there be free and open expression by all participants and that this will only occur if they are not inhibited by the risk of subsequent defamation suits.

Price v. Armour, 949 P.2d 1251, 1256 (Utah 1997).

Three elements must be satisfied for allegedly defamatory statements to qualify for an absolute privilege: (1) The statement must have been made during or in the course of a judicial proceeding; (2) the statement must have some reference to the subject matter of the proceeding; and (3) the statement must have been made by someone acting in the capacity of judge, juror, witness, litigant, or counsel.

Allen v. Ortez, 802 P.2d 1307, 1313 (Utah 1990).

First, note that the privilege is absolute and not conditional. For example, in Price, the court was faced with a litigant who, during settlement discussions, appeared to defame the other party’s attorney to the other party in both words and conduct. Essentially, those who are protected by the privilege are entitled to publish defamatory material without fear of retaliation as long as all of the elements are met.

Also from Price we learn that “judicial proceeding” is a very broad concept in terms of the type of proceeding involved and the circumstances under which the defamatory conduct occurred. “Judicial proceeding” includes formal court proceedings as well as “proceedings of administrative officers, such as boards and commissions so far as they have powers of discretion in applying the law to the facts which are regarded as judicial or ‘quasi-judicial’ in character.” Price, 949 P.2d at 1257 (quoting Mortensen v. Life Insurance Corp., 6 Utah 2d 408, 315 P.2d 283 (1957) (other citations omitted)).

The scope of the privilege also precedes the filing of a formal action: “The absolute privilege to publish a defamatory matter can occur in communications preliminary to a proposed judicial proceeding as well as during the course of or as part of a judicial proceeding if the matter has some relation to the proceeding.” Price, 949 P.2d at 1256. The privilege also governs settlement discussions: the “privilege applies to defamatory statements made in the institution or conduct of litigation or in conferences or other communications preliminary to litigation.” Id. at 1256-57 (citing 50 Am.Jur.2d Libel and Slander § 302 (1997)).

Finally, the absolute privilege applies not only to defamation claims but also to defamation-related claims such as intentional interference with business relations (including contractual and economic relations). Id. at 1258.

Under a broad set of circumstances the absolute judicial proceedings privilege can be a powerful defense. You are now informed. Use it wisely.