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Specific Torts: Negligence, Nuisance, Trespass And Defamation

Tort in common law, civil law, and the vast majority of legal systems that derive from them, any instance of harmful behaviour, such as physical attack on one's person or interference with one's possessions or with the use and enjoyment of one's land, economic interests (under certain conditions), honour, reputation, and privacy. The term derives from Latin tortum, meaning something twisted, wrung, or crooked. The concept encompasses only those civil wrongs independent of contracts.

Other legal systems use different terminology for this wide and amorphous area of the law. Germans, for example, talk of unlawful acts, and French-inspired systems use interchangeably the terms dalits (and quasi-dalits) and extra-contractual civil responsibility. Despite differences of terminology, however, this area of the law is primarily concerned with liability for behaviour that the legal order regards as socially unacceptable, typically warranting the award of damages to the injured party or, occasionally, an injunction.

It is broadly true to say that most western European and common-law systems tend to regard as actionable the same factual situations. But although the problems encountered are identical and the results reached are often quite similar, the arrangement of the law and the methodology employed often differ significantly between countries, depending on how the law has been conceived and how solutions have been approached in various cultures over time.

Thus, the German Civil Code reflects a strong tendency to abstraction and systematization qualities that betray the code's university and Roman-law origins and that contrast at least superficially with the more casuistic (case-based) and judge-made law of the common-law systems.

By contrast, the 19th-century codifications, which are the products of the natural school of law, are marked by their broad sweep and manifesto-like provisions, often making them more readable than their German counterparts but also less precise and accordingly in need of judicial definition.

Typical of this approach is the Napoleonic Code of 1804, which became a model for most Romanistic legal systems, including those of Italy and Spain and their derivatives, mainly in Central and South America. Much of the contemporary law in these countries results from the interplay between judicial activity and doctrinal writing.

Tort law, though often viewed as secondary to contract law in the law of civil obligations, spread to many parts of the world after World War II, and its influence was especially notable in continental Europe. At the same time, criticism of it has led to its replacement either partially by specialized schemes or, in rare cases, by complete systems of accident compensation.

Criticism has also provoked serious discussion about the impact of the welfare state, modern insurance practices, and the importance of economic analysis in the proper development of the law. For a time it even looked as if these challenges might bring about wholesale reform (such as that adopted in New Zealand in the 1970s) that would threaten rules with very ancient pedigrees. But the 20th century closed with the tort system remaining basically intact, albeit held to a lower status within the entire system of compensation, as the majority of compensation for reparable injuries continued to be paid through social security systems and insurance claims.

Specific Torts Are As Under:
Negligence is the breach of legal duty to take care which results in damage, undesired by the defendant to the plaintiff (Winfield).

Negligence is an independent tort. Its essentials are:
  1. Duty to take care.
  2. Breach of duty.
  3. Consequent damage.

1. Duty to take care: The leading case is Donoghue v. Stevenson, M, the manufacturer had sold ginger-beer in an opaque bottle to a retail seller R. R sold it to A who gave a treat with it to a young woman P. P consumed the ginger-beer, but found in the bottle a dead snail.

This seriously affected her and she became ill. She sued M, the manufacturer. In fact there was no contractual duty of M to P, but the House of Lords, held that M was liable. Lord Atkin's judgment is a classic. He held you must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour, who then in law is my neighbour? The answered seems to be, Persons who are so closely and directly affected by my act that ought reasonably to have them in contemplation as being so affected by my acts or omissions.

It was the duty of the manufacturer to take care that the opaque bottle did not contain noxious matter. It was held that the manufacturer was liable.

This case is a milestone and the above principle is regarded as the statement of law. The courts follow this, unless there are strong reasons to deviate from it.

The ‘standard of care' as applied by the courts, is the standard of a reasonable man. The care, the skill and the diligence of the person, must be that of an ordinary prudent man under the circumstances.

In Bolton v. Stone, D, a person who was on the roadside, was injured by a cricket-ball hit by the player from the field which was about 100 yards away from the road. There were one or two such rare occasions in the past. The court held that the defendants (the members of the club) were not liable. The hit was so exceptional that no prudent man would have foreseen. Further, it was too remote and no reasonable man would have anticipated.

2. There must be a breach of duty.
The second essential condition is that there must be a breach of duty. This is judged with reference to a ‘reasonable man'. According to Alderson J, Negligence is
  1. The omission to do something which a reasonable man would do, (guided by the circumstances on hand).
  2. Doing something which a prudent man would not do.

This is the objective standard of a reasonable man. It is the application of ‘foresee-ability test' i.e. whether a reasonable man would have foreseen.

Roe v. Minister of Health: In 1947. Dr. G. gave to R a spinal anesthetic to conduct an operation. The anesthetic which was in a ampoule, had been stored in phenol as usual. But due to an ‘invisible crack' in the ampoule, phenol had entered and in consequence, the patient R became paralysed. Dr. G had taken all care as a prudent surgeon would have taken and he was not aware of the crack in the ampoule. Held, Dr. G was not liable.

The medical literature on the subject was consulted as the set standard and Dr. G was held not negligent.

3. Consequent damage.
There must be the injury to the plaintiff as a direct consequence of the negligence of the defendant. It must not be too remote. The leading cases are:
  1. Donoughue v. Stevenson
  2. Bolton v. Stone
  3. The wagon Mound case etc.

Contributory Negligence
Meaning: This is a defence open to the defendant, in an action for negligence. This is based on the principle that no doubt, the defendant is, in fact negligent but the plaintiff also has contributed his negligence, and hence the plaintiff should not be allowed to take advantage of his own tort of negligence.

The maxim is in pari delicto potior est conditio defendatis�(If both parties are equally to blame, the condition of defendant is to be preferred). Both are authors responsible for the injury. Of course, the burden of proof lies on the defendant to establish contributory negligence of the plaintiff.

The question in each case is: who caused the accident? (Winfield)
  1. If it were the defendant, the plaintiff can recover damages in spite of negligence (Rule of last opportunity: Davis v. Mann).
  2. If it were the plaintiff, he cannot recover damages inspite of defendant's negligence (Butterfield v. Forrestor).
  3. If it were both the plaintiff and defendant, the plaintiff cannot recover.

Davies v. Mann: P had tied the forefeet of his donkey and had let loose on the highway. D who was going at a smartish pace in his wagon (horse driven), ran over and killed the donkey. P sued D. It was held that D had the last opportunity to avoid the accident. Hence, D was liable.

Butterfieid v. Forrestor: D wrongfully obstructed the highway by putting a pole across the road. P who was riding violently saw the pole from a distance of about 100 ft. away, but came against the pole and was thrown over by the pole and was injured. It was held that D was not liable. The reason: If P had exercised due care, he could have avoided the accident, this decision has been modified later in Davies v. Mann.

Rule of last opportunity: This is the rule now in operation.

In British India Electric Co. v. Loach: The rule was applied to constructive last opportunity. In this case, P, a wagon driver was driving negligently on the level crossing. D's driver who was driving a tram came at a fast speed, saw the wagon on the tramline, and applied the brakes. But, as the brakes failed, he dashed against P and P was killed. P's representative sued D.

It was found that the brakes were defective and hence D had the last opportunity. If the brakes were in order, he could have averted the accident. He has failed to do so and hence, D was held liable.

As this rule was also not free from doubt, the Parliament enacted in England the Law Reforms Act 1945. It provides that when both P and D are at fault the claim of P will not be defeated, but would be reduced to such extent as the court thinks just and equitable.

Alternate Danger doctrine: Jones v. Boyce

This is also called as the dilemma principle. Such a situation arises, when the plaintiff, P is put in a position of imminent personal danger by the wrong doing of the defendant. In order to avoid the danger, P suffers injury. In such cases, D is liable.

Jones v. Boyce: D, a Coach-driver was driving with P, so negligently and with so much speed that P was alarmed. Going down the hill, the coach's coupling gave way; It struck a post and was about to be turned down. P, to save himself jumped out and was injured. He sued D. Held D liable.

If P had not jumped out, he would not have been injured, as the coach came to rest later without any trouble. Even then D was held liable as he had created a dilemma to P.

Res ipsa loquitur. (The thing itself speaks)

This is part of the rule of evidence. In cases of negligence, the burden of proving negligence is on the plaintiff, but Res ipsa loquitur is an exception. This is a case where the event ‘tells its own story' clearly and speaks to the defendant to disprove. Eg. The presence of a pair of scissors in the stomach of a patient P, 2 days after the operation is over, or the presence of a stone in a loaf of bread, tells its own story. The court presumes the negligence of the Defendant.

Byrne v. Boadle: A barrel of flour rolled out of an open doorway of the upper floor of the godown of D, and fell on P who was going on the street. The burden was on D to prove that he was not negligent. Held D liable.

In State of Punjab v. M/s Modern Cultivators, a canal was under the care of the State. Due to its negligence there was a breach and water flooded the fields of P. P suffered losses and sued the State. Held, the State was liable. Res ipsa loquitur was applied.

Nuisance is the unlawful interference with a person's use or enjoyment of land or some right over or in connection with it (Winfield).

The main principle is ‘use your property so as not to interfere with that of others.

Nuisance is of two kinds
  1. Private
  2. Pubic.

Public Nuisance is a Crime. It materially affects the peace, comfort and convenience of the people at large. E.g. Obstructing public highways, carrying on a prohibited trade causing annoyance to the public, etc

In Soltan v. De, P was residing in a house next to the Roman Catholic Church. The Church bell was ringing at all hours of the day and night.

Held: that this was public nuisance. An injunction was granted.

Public Nuisance And Private Nuisance
  1. A public right is violated. While Private right is violated
  2. It is a crime. While private is not a crime but tort only.
  3. Special damage, is necessary. While in private Special damage need not be.
  4. To be filed through Advocate. While in private, Suit may be filed by General.

Essentials of Nuisance.
  1. There must be an unlawful interference.
    This must be in respect of the use or enjoyment of land or of some right over or in connection with it causing physical discomfort to the plaintiff or some damage to his property. E.g. Noise, smell, pollution of air or water. But in society some amount of interference by sound, smell etc., is inevitable. The courts apply the standards of a reasonable man and determine the degree of injury to the comfort or enjoyment of the property. Up to a certain degree, interference is not actionable.

    Taking all the circumstances into consideration the court fixes the Standard of liability.
  2. There is no liability for abnormal sensitiveness of a person or of the property. The leading cases are:
    1. Robinson v. kilvert
    2. Heath v. Brighton.
    3. Wagon Mound Case

The defendant is not liable in respect of abnormal sensitiveness.
  1. Robinson v. Kilvert: D was in the ground floor, and was manufaturing paper boxes. Just above D's room, P had stored sensitive paper. Due to heat used by D to make boxes, the paper got spoiled. P sued D, held: P's paper was abnormally sensitive in the circumstances. Hence, D was not liable.
  2. Heath v. Brighton: D's power station was making a buzzing noise. The church complained that it affected the sermon.
    Held: as the noise never affected the attendance for sermons there was no nuisance.
  3. Wagon Mound Case: Oil stored in Wagon Mound vessel escaped and spread to over 600 feet away, where another ship P had been embarked. Welding operations were going on ship P. The people there took care to test oil but continued welding work. Fire broke out and the ship was damaged. Held: Not liable.

3. Malice:
The question is whether, bad intention of the defendant is necessary for nuisance. The answer is that Malice is not essential.

This has been answered in the leading cases.

Christie v. Davey:
D became angry with the Music lessons given by P a Music Teacher. P was living in a residence separated from D by thin wall. D interfered with Music Lessons by whistling, Shrieking, beating trays, drums etc.,

That an injunction could be given to D to stop the Nuisance.

Hollywood Silver Fox v. Emmett:
D intentionally fired guns and scared the silver mixed during their breeding time, and caused great damage. P the owner sued for nuisance,

There was Motive, compensation must be paid. Hence, Malice is not essential but it is necessary to get more compensation.

4. Nuisance on the highway:
This is any act or omission on or near a highway, whereby the public are prevented from freely, safely and conveniently passing along the highway.
  1. Under common Law, the crown was not liable for nuisance on Highways, but this has been changed under the Highways Act 1961 and the State or Department is liable.
    In India, as per the National Highways Act 1956, the state is liable.
  2. Projections over the Highways.
    The law is strict in this regard. The person who creates a nuisance on the highway is liable.

    Tarry v. Ashton: An overhanging lamp of D fell on the plaintiff who was walking on the pavement.
    Held, D the defendant was liable. This was an interference on the Highways and the rule of strict liability applied.

The remedies for private nuisance are:
  1. Abatement
  2. Damages
  3. Injunctions.

i) Abatement: This means removal of nuisance. This is a private remedy without going to the courts, E.g.: Overhanging branches of a tree may be cut off, if they are a nuisance. Further, to save the lives of individuals or for security reasons, the nuisance may be removed. No notice is necessary.

ii) Damages: The court determines to what extent there is diminution or reduction of the value or utility of the property to fix the compensation. But some special damage is to be proved.

iii) Injunction: As per the specific Relief Act, temporary or permanent injunction may be granted by the court depending on the circumstances of the case.

Trespass to Land
Trespass to land is the unjustifiable interference with the possession of land. (Winfield)

Two Essentials:
  1. Invasion of or entry on the land.
  2. Invasion must be unjustifiable.

1. Possession:
It is the evidence of ownership and has two ingredients: Animus and Corpus ; Animus is the mental element and corpus is the physical element. The person in possession of land need not be the owner; he gets the right to quiet and peaceful enjoyment of the property. He has a right to exclude all others.

There is trespass if A enters on the land of 'B' or remains there or does any act affecting the possession of B, without legal authority. It is not necessary that he must use force and cause damage on the land of B. In fact as chief justice Holt said Every invasion of private property, be it ever so minute, is trespass. (Entinck v. Corrington)

2. Invasion must be unjustifiable:
Every interference which is without any legal authority or justification amounts to trespass, e.g. Placing any chattel on the land of B, planting trees on that land, shooting over that land, causing any noxious substance to cross the land, erecting a building overhanging that land etc, Even the airspace above the land belongs to the possessor of land and any unauthorised invasion is a trespass.

Trespass may be by animals. The owner of the animal is liable.

Trespass ab initio.
Trespass ab intio means trespass from the beginning. This is a circumstance where the entry of a person on the land of another is lawful, but if the person stays and abuses his authority he becomes a trespasser ab intio. It is important that the person must abuse his possession by doing some positive act and not by a mere omission.
  1. Six Carpenter's case: Six carpenters entered an inn (hotel), took bread and wine. They paid the bill. They ordered again and were served. They quarrelled on the rates and then did not pay as per the demand. The hotel owner P sued them for trespass ab initio. Held, not liable. For trespass ab inito, there must be a positive act. Not paying was an omission.

    If a carpenter or an electrician lawfully enters to do some repairs but does some positive act (damaging the property, stealing some materials etc.,) he becomes liable for trespass ab initio.
  2. Dais v. Pasmore: In this case, the police entered the premises of P, To arrest P and others. They seized some documents which were relevant for the trial of the arrested person; they also seized other documents which they returned later. It was held that the police officers were liable for trespass ab initio in respect of documents seized and returned. But they were not liable for entry on the premises to arrest P and others.
  3. Chic Fashins v. Jones: The police officers, under a search warrant entered P's shop to search certain stolen goods. They found none but found certain others which they seized. They had reasonably and erroneously believed that the seized goods were stolen.

    Held, the seizure was not illegal. The doctrine of trespass ab initio was not raised.

Remedies for Trespass
The Remedies are:
  1. Right of re-entry: The dispossessed person P, may re-enter if that is possible or may enter under the orders of the Court. (Specific Relief Act).
  2. Action for recovery of land: The dispossessed person may sue for recovery of land; if he establishes his title and possession, heir entitled to recover the land.
  3. Action for mesne profits: Any profits made or rent collected or benefit made by the person who was on land without legal author it, may be recovered by the plaintiff under Civil Procedure Code by filing a suit for mesne profits.
  4. Jus Tertii: Defences for Trespass. The various defences open to an action for trespass to land are briefly as follows:
    1. Right by prescription: The defendant must establish his right earned by prescription.
    2. Leave and Licence: The entry may be under permission expressly or by implication.
    3. Authority of law: The entry may be according to law as in cases of entry for attachment of property under the orders of the court.
    4. Distress Damage feasant: For cattle trespass, the animal may be detained until compensation is paid by the owner of the animal.
    5. Self defence: This is a general defence and must be proved.
    6. Re-entry on land: A person who is wrongfully dispossessed may enter peaceably and without using force.
    7. Abating a Nuisance: To remove a nuisance, entry on the land is justified.
    8. Entry to protect an easementary right.

This means right of third party. If T is a tenant of P, the plea of T that P is not the owner of that house or that he has no title, is no defence of T. Similarly, in case of Trespass to land, the plea of the trespasser that P has no rights or title will not be allowed. This is a sound rule of procedure before the courts. However in case of ejectment this may be a defence.

In Asher v. Whotlock: A was in possession of a waste land. B entered the premises to take the waste. B pleaded jus tertii that the title was with a third party but could not establish. Hence B failed.

Defamation is the publication of a statement which reflects on a person's reputation and which tends to lower a person in the estimation of right thinking members of society generally, or, which tends to make him shun or avoid that person (Winfield).

This definition is wider than those, which define, defamation to mean the publication of a statement which tends to bring a person into hatred, contempt or ridicule. Imputations of insincerity or insolvency etc., which may arouse only sympathy or pity in the minds of reasonable people, are also covered by the above definition.

The statement or words must be:
  1. False
  2. Spoken (slander) or written (libel)
  3. Defamatory
  4. Published.

i) False: The words used must be false. In fact, truth is a clean justification. It must be shown that the imputation was false and malicious.

ii) The words may be spoken as in slander or may be in writing i.e., in a permanent form as in libel. Any writings, publication in a newspapers, sky writing, cinematograph film, etc., are covered under libel. The leading case is Youssoupoff v. M.G.M. Pictures.

The defendant D, produced a film named Rasputin, the mad monk. In that film, one princess Natasha�had been raped by Rasputin, the mad monk. The princess Irina of Russia, the wife of prince Youssoupoff (plaintiff) claimed compensation on the ground that it was clearly understood that the reference was to prince Irina. The jury awarded 25,000 pounds as compensation and this was confirmed by the Court of Appeal.

iii) Statement must be defamatory and refer to the plaintiff.

The test is whether the words used tend to lower the plaintiff in the estimation of the right thinking members of the society generally (Winfield). If the words expose a person to contempt, ridicule or hatred or injures his profession or trade, or makes others shun or avoid his company, then the words are defamatory e.g. imputation of unchastity to a woman.

The plaintiff must prove that the defamatory words have a reference to him. Intention is not material.

If the reference is to a Class or group of persons, then the plaintiff must prove that the reference is to himself. A writes that ‘lawyer are thieves', no particular lawyer can sue (Eastwood v. Holmes), But, when words have a latent meaning or a double meaning (pun), then it is defamatory. This is called Innuendo.

Leading Cases.
  1. Mrs. Cassidy v. Daily Mirror.
  2. Tolley v. Fry and Sons
  3. The words must be published: publication is an essential requirement. Whether a statement tends to lower a person's reputation is decided by the standard of a reasonable man.
Publication means publishing a particular item of news or information to a person, other than the person to whom it is addressed:
  1. If A writes to B, defaming B and sends the letter by registered post, there is no publication and therefore A is not liable.
  2. If A writes a post-card defaming B, and sends by post, there is publication if an inquisitive postman reads and publishes. A is liable in such a case. (Robinson v. Jones)
  3. If A dictates to his steno defaming B and if the steno publishes it, there is publication.
  4. In Huth v. Huth, A sent a defamatory letter in an unsealed cover to B. B's butler, without authority opened and read it, held, that there was no publication as B had no authority to see.

Differences between slander and Libel.

  1. The statement must be in a permanent form, Broadcasting of words comes under libel. Pictures, statues, effigy writing in any form, Printing marks or signs, sky writing by airplane etc come under libel. T.V relay is libel.
  2. Libel is generally addressed to the eye.
  3. Libel is actionable per se. (by itself) Libel tends to provoke breach of peace. It is a crime as well as tort in England and India.

  1. Slander is in a temporary form. It is in words or gestures. Manual languages of the deaf and dumb, mimicry, and gesticulations etc., are examples. Slander is addressed generally to the ear.
  2. Slander is not actionable per se. Hence, special damage must be proved i.e., Economic or Social loss to the plaintiff must be proved. Slander is not a crime, in England However on some occasions words may be seditious or blasphemous and hence may become a crime, but according to Section 499 I .P.C. it is a crime, in India.
Slander is not Actionable per se.

This means that in cases of Slander special damage must be proved. Libel is actionable per se. As libel will be in a permanent from, it is likely to do more harm to plaintiff. Special damage means actual damage sustained by the plaintiff. The plaintiff, must prove loss of money or some temporal or material advantage estimable in money which he has lost. Mere loss of society or consortium of one's friends is not sufficient.

If a person is excluded from a dinner party, because of slander he sustains a loss material and temporal. Hence, there is special damage and compensation can be recovered. If there is no special damage there will be no compensation in slander.

Hence, the general rule is that slander is not actionable per se.
But, this is subject to the following exceptions:
  1. Imputation of Criminal offences punishable in nature.
    Hailing v. Mitchel. M was a hotel owner. H was a hair dresser. M said to H You were with a crowd last night. I cannot have you here. You are to be turned out'. The court held that the words did not amount to an imputation of an offence.

    Jacksons v. Adams: P was in possession of parish bell-ropes. D told P ‘Who stole the parish bell-ropes; you rascal'. As the possession of bell-ropes was with P stealing by P was not possible and hence, there was no imputation of an offence.
  2. Imputation of contagious or infectious diseases which are likely to make others avoid the company of the plaintiff.
  3. Imputation of unchastity or adultery to a woman.
  4. Imputation of unfitness, dishonesty or inefficiency in a profession trade or business.
Imputation of ignorance of law to a lawyer or incompetence to a surgeon, or cheating to a trader or insolvency to a businessman are examples; Bull v. Vasquez.

Defences open to the defendant are:
  1. Justification: Truth or justification is a very good and complete defence. Defamation is the injury to a man's reputation and if there is truth in the statement, then there is no defamation. The person is not lowered, but is placed to his proper level. The substance of the statement must be true, not merely a part of it. ‘How, a lawyer treats his clients' was an article which dealt with how a particular lawyer was treating his client.
    Held the article was in-sufficient to justify the heading. (Bishop v. Lautiar)
  2. Fair Comment:
    The comment must be on a matter of public interest. Honest criticism is essential for the efficient working of democratic public institutions. The Government and its institutions may be criticized.

  1. The matter commented must be of public interest. The Government and its various wings and establishments and public institutions may be criticised. Novelists, Dramatists, Musicians, Actors, etc., may be criticized.

  2. Fair comment must be an expression of an opinion and not an assertion of facts. Plaintiff was advertising in papers as a specialist in E.N.T the defendant commented on him as a quack of the rankest species.

    Held: that it was a comment, the Court always looks to the merit of the comments.

  3. The comment must be fair: Mere violence in criticism by itself will not make the statements unfair.

  4. Comment must be malicious. Even fictitious name may be used. That by itself will not render the statement unfair.

In case of defamation one question that may come up for consideration is the actual meaning of the words used. Sometimes words may have double meanings (pun) or may be ambiguous but courts will be interested in finding out the exact meaning that is to be attributed under the circumstances. It is for this reason that the court invokes the concept of Innuendo i.e. to find out the inner meaning of the words used by the author of the defamatory words.

Mrs. Cassidy v. Daily Mirror.
The facts were that the defendant published in his newspaper that ‘Mr. Cassidy and Miss. K are engaged', In fact Mr. Cassidy had married Mrs. Cassidy. The wife Mrs. C sued the publishers. Her contention was that on seeing the news item, her friends in the women's club and elsewhere shunned her company and looked down upon her. The court therefore looked into the inner meaning of the publication. In effect, it meant that Mrs. C was not a legally wedded wife of Mr. C i.e. she was a kept mistress of Mr. C. The court awarded compensation.

Tolly v. Fry and Co. (Chocolate case)
In this case, P was a golf player and a member of the golf club. He was an amateur who became very popular. The defendant company D, published his photo with a chocolate protruding from his pocket, inscribed Fry and Co. Chocolates. The Golf club felt that the plaintiff had violated the club rules and that he could be asked to resign. P sued the company for compensation. Court applied the principle of Innuendo and held that the real meaning was that if P by consent sell his name as Golf player he could be terminated from the golf club. Hence D was held liable.

i) Privileges:
Privileges are of two Kinds: absolute and qualified.

Meaning of privileges:
They are occasions on which there ought to be no liability for defamation. This is because the public interest outweighs the plaintiff's right to his reputation.

Privileges are absolute when the communication is of paramount importance. Such occasions are protected, however malicious or outrageous they may be. The defendant may make statements even if they are false.

Examples for absolute privileges:
  1. Statements made in Parliament or Legislature.
  2. Reports, papers, etc., of either House of Legislature.
  3. Judicial proceedings.
  4. Communications between solicitor (advocate) and his client.
  5. Communication between one officer and a foreign officer. Statements are qualified when the person makes the statement honestly even though they are false.

Qualified Privilege
Other types of communications are subject to what is called a qualified privilege, meaning that the person making the allegedly defamatory statement may have had some right to make that statement.

If a qualified privilege applies to a statement, it means that the person suing for defamation must prove that the person who made the defamatory statement acted intentionally, recklessly, or with malice, hatred, spite, ill will or resentment, depending on your state's law.

Just some of the statements for which a qualified privilege applies are:
  1. statements made in governmental reports of official proceedings
  2. statements made by lower government officials such members of town or local boards
  3. citizen testimony during legislative proceedings
  4. statements made in self-defense or to warn others about a harm or danger
  5. certain types of statements made by a former employer to a potential employer regarding the employee, and
  6. published book or film reviews that constitute fair criticism.

The employer review qualified privilege is particularly noteworthy. In order to avoid defamation claims, some employers these days refuse to confirm any details about former employees other than their dates of employment. But certain types of negative statements might fit in under the qualified privilege category.

If, for example, the employer fired the employee for theft, a statement about that to a potential employer might qualify as a statement made to warn others about a harm or danger (i.e., the danger of hiring someone who might steal from you).

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