Defamation

Privileged Information

While some statements may be classified as defamatory, they may be privileged. Privilege is an affirmative defense made to counter a defamation cause of action, and the judge makes the determination of the privilege applicability as a matter of law. The issue of privilege is critical for school administrators and teachers who comment on student progress. Likewise, administrators and school boards assert privilege when discussing teacher evaluations.

Two forms of privilege exist: absolute, and qualified or conditional. Absolute privilege provides protection over communication, regardless of truth or even malice, and applies to relevant communications that are related to one's position. Statements made by judges, legislators, governors, and other high-ranking government officials in their positions are covered as absolutely privileged. In most jurisdictions, communications from a state superintendent of public instruction fall under absolute privilege. In addition, according to the U.S. Supreme Court, all federal employees, regardless of rank, are clothed with absolute privilege over statements made pursuant to their positions.

Qualified privilege, also referred to as conditional privilege, applies to communications related to special roles or interests in statement. The communications must be made in good faith and asserted without reckless disregard for the truth. Statements made by board staff, administrators, and teachers in the course of their duties are typically classified as qualified privilege, provided that they are made in good faith and without reckless disregard for the truth.

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