Defamation in Emails: The Judicial Privilege

Balancing free speech rights on the Internet against rights of privacy and the right not to be defamed is not always easy. The judicial or litigation privilege is a defense to defamation claims and may provide protection to communications that are intended for, or ultimately circulate on, the web. If the privilege applies, there is absolute immunity from liability for the defamatory statements.See e.g., Park Knoll Assoc. v. Schmidt, 59 NY2d 205, 208-209 (1983).

Most attorneys are familiar with the application of the judicial privilege to pleadings filed in the course of litigation and to arguments made in the courtroom, but the privilege has a more expansive application and may apply to extrajudicial Internet communications made to third parties during the pendency of judicial or quasi-judicial proceedings. Since the privilege is considered absolute, analytically, a reviewing court should not inquire into motive, bad faith or the recklessness of an allegedly defamatory statement. See e.g., Wiener v. Weintraub, 22 NY2d 330, 331 (1968). In other words, even if the defamatory communication is made maliciously, if the judicial privilege applies, there will be complete immunity from the defamation claim.