1) Conditional Privilege

a) Common Interest Privilege

· Defendant's defamatory communication is conditionally privileged when th
e defendant reasonably believes that another who shares a common interest is ent
itled to know the information. (R2d Torts 596)
Watt v. Longsdon (common interest privilege)
· Privileged occasions-when an individual is able to make defamatory state
ments to another which are untrue without incurring liability. The requirements
of privilege are:
1. A public or private duty (reasonably-minded person) to communicate, whet
her legal or moral;
2. that the communication should be fairly warranted by any reasonable occa
sion or exigency; OR
3. a statement in the conduct of his own affairs where his interest is con
cerned.
Pol.:
E The allegation that the speaker has unlawfully and maliciously published
is displaced by proof that the the speaker had either a duty or an interest to
publish, and that this duty or interest confers the privilege.

file://..\Fall 2010 notes and briefs\Torts II\10-25-10 Watt v. Longsdon (6

39).odt

b) Recipient's Interest Privilege

· Defendant's defamatory communication is conditionally privileged when de
fendant reasonably believes that the information affects an important interest o
f the recipient and
1. defendant is under legal duty to publish it, or
2. its publication is within generally accepted standards or decent conduct
. (R2d Torts 595)
c) Publisher's Interest Privilege
· Defendant's defamatory communication is conditionally privileged if the
defendant reasonably believes
1. the information protects a sufficiently important interest of the defend
ant, and
2. the information will help in the lawful protection of that interest. (R2
d Torts 594).
d) Self Defense
· Self-defense-Communication made in fair self-defense are privileged. If
a person is attacked in a newspaper, he may write to the paper to rebut the char
ges, and may at the time retort upon the assailant, where such retort is a neces
sary part of his defense or fairly arises out of the charges he has made. But i
n rebutting an accusation the party should not state what he knows to be untrue,
or intrude unnecessarily into the private life or character of his assailants.
The privilege only extends to such retorts as are fairly an answer to the attac
ks. (Israel v. Portland News)
e) R2d Torts 611 Report of Official Proceeding or Public Meeting
 611 Report of Official Proceeding or Public Meeting
The publication of defamatory matter concerning another in a report of an off
icial action or proceeding or of a meeting open to the public that deals with a
matter of public concern is privileged if the report is accurate and complete or
a fair abridgement of the occurrence reported.

Comment a. Character of privilege. The privilege of the publication of repor

ts of defamatory statements covered in this Section is not an absolute privilege
. It is, however, somewhat broader in its scope than the conditional privileges
covered in 594 to 598A. The basis of this privilege is the interest of the publi
c in having information made available to it as to what occurs in official proce
edings and public meetings. The privilege is therefore one of general publicatio
n and is not limited to publication to any person or group of persons. For the s
ame reason the privilege exists even though the publisher himself does not belie
ve the defamatory words he reports to be true and even when he knows them to be
false. Abuse of the privilege takes place, therefore, when the publisher does no
t give a fair and accurate report of the proceeding. (On this see Comment f).
· A person cannot confer this privilege upon himself by making the origina
l defamatory publication himself and then reporting to other people what he stat
ed. Nor may he confer the privilege to a third person by making a collusive arr
angement for that person for the purpose of conferring privilege.
i. Ways to lose the Conditional privilege
· Ways to lose a Conditional privilege:
1. Defendant knew the statement was false or acted in reckless disregard fo
r whether it was false, OR
2. Defendant's primary purpose in publishing the information was NOT to pro
tect the interest that the privelege protects (e.g., defendant was motivated pri
marily by ill will or malice; See Myers v. Hodges), OR
3. Defendant has published more than necessary or published it to additiona
l persons unnecessarily. (See R2d 604)
Note: It is not abuse of the privilege to repeat a rumor, so long as you ident
ify it as a rumor AND the circumstances suggest that repeating the rumor is reas
onable. (See R2d Torts 602).
Myers v. Hodges (extent of the common interest privilege)
· Extent of the privilege-Common interest privilege only applies if the de
fendant believed he was speaking truth. Where a person speaks upon a privileged
occasion, but the speaker is motivate more by a desire to harm the person defam
ed than by a purpose to protect the personal or social interest giving rise to t
he privilege then it constitutes express malice and the privilege is destroyed.
Incidental gratification is not sufficient to defeat the privilege. (e.g. indiv
idual motivated primarily by protection of person, but also feels hostility) (M
yers v. Hodges)

R2d Torts 602 Publication of Defamatory Rumor (There is no privilege for rum
or, there must be a privilege in the first place)
602 Publication of Defamatory Rumor
One who upon an occasion giving rise to a conditional privilege publishes a
defamatory rumor or suspicion concerning another does not abuse the privilege,
even if he knows or believes the rumor or suspicion to be false, if
 (a) he states the defamatory matter as rumor or suspicion and not as fact,
and
(b) the relation of the parties, the importance of the interests affected a
nd the harm likely to be done make the publication reasonable.
R2d Torts 604 Excessive Publication
604 Excessive Publication
One who, upon an occasion giving rise to a conditional privilege for the pu
blication of defamatory matter to a particular person or persons, knowingly publ
ishes the matter to a person to whom its publication is not otherwise privileged
, abuses the privilege unless he reasonably believes that the publication is a p
roper means of communicating the defamatory matter to the person to whom its pub
lication is privileged.