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3.11-9  Defenses - Privilege

Revised to January 1, 2008

As I have instructed you, the burden is on the plaintiff to prove that the defendant made the defamatory statement about (him/her).  Even if the plaintiff does prove that the statement was made, the defendant claims that (he/she) is not liable because (he/she) had a right to make the statements.  Under certain conditions, a person will not be liable for making a defamatory statement if that person had a right, or privilege, to make the statement.  

In this case, the privilege that the defendant states (he/she) was exercising is that the statement was <insert as appropriate:>

  • a statement made in good faith in the discharge of a public or private duty or in the pursuit of one's own rights or interests.

  • criticism of, or allegations of misconduct against, a public official or candidate for public office where the statement made is relevant to whether the person should hold office or be elected.

In this case, the defendant claims that <insert allegations>.

The defendant has the burden to prove that the statements were made under circumstances that were substantially as (he/she) claimed them to be.  If you find that the defendant has proven this to you, then as a matter of law, (his/her) statements were privileged.  If you find that the defendant has not proven this to you, then the statements were not privileged.

If you do find that the defendant's statements were privileged, you must determine whether the defendant has misused (his/her) privilege.  If you find that the defendant has acted maliciously and has not acted honestly or in good faith, (he/she) loses the privilege.  Malice can include ill will or a desire to hurt another person, but it does not always have to include similar negative feelings.  Malice can include any improper or unjustifiable motive.  It can also include making a statement with knowledge that it is false or with reckless disregard of whether it is false or not.  A negligent misstatement of fact is not enough.

If you find that the defendant did not make the statement in good faith and for the reason that (he/she) claims, but that (he/she) made it maliciously for an improper reason, then the statement was not privileged.  You should consider all of the circumstances surrounding the making of the statement in making your determination of whether the statement was privileged and, if privileged, whether it was made in good faith or with malice.

The defendant has the burden to prove, by a preponderance of the evidence, that the statement was privileged.  If privileged, then the plaintiff has the burden to prove, also by a preponderance of the evidence, that the privilege was misused because the statement was made maliciously.

Authority

Gaudio v. Griffin Health Services Corp., 249 Conn. 523, 545-46 (1999); Chadha v. Charlotte Hungerford Hospital, 97 Conn. App. 527, 537-38 (2006); Miles v. Perry, 11 Conn. App. 584 (1987). 

Notes

This instruction covers what is commonly called qualified privilege.  It is not intended to cover claims of absolute privilege concerning judicial or legislative proceedings or governmental acts.  If there is an absolute privilege, damages cannot be recovered for a defamatory statement even if published falsely and maliciously.  Craig v. Stafford Construction, Inc., 271 Conn. 78, 84 (2004).

A defendant must specially plead a claim of privilege.

Whether a statement was privileged is a question of law for the court.  Whether a defendant abused a privilege by acting maliciously is a question for the jury.  3 Restatement (Second), Torts § 619, p.316 (1977).

See General Statutes § 52-237, which is applicable to actions for libel, concerning the effect of malice in fact or the effect of a retraction made or refused.
 


 

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