California Civil Code § 47(c) grants a conditional privilege against defamation to communications made without malice and on subjects of common interest. This conditional privilege is often used by employers to argue that they should be protected from liability for statements made about employees to other employees in the employer’s organization. Critical to determining whether the conditional privilege is even applicable is 1) whether the allegedly defamatory communication was made on a matter of common interest and 2) whether the employer acted without malice in making the statement. Only if both of these requirements are met can an employer be immune from liability for his or her statements.

Common Interest. The conditional privilege applies only if the statement is reasonably calculated to advance or protect the interest of the communicator or the person to whom the communication is made on a matter of “common interest.” Deaile v. Gen. Tel. Co. of Calif. (1974) 40 Cal.App.3d 841, 846. Depending on the circumstances, examples of statements made on a matter of “common interest” can include an employer’s job reference to a prospective employer and communications made between employees as part of a workplace investigation.

Malice. Even if a statement is made on a matter of “common interest,” the privilege may still be overcome by showing that the employer acted with malice. Malice for the purposes of establishing an abuse of the conditional privilege only requires a showing of a state of mind arising from hatred or ill will evidencing a willingness "to vex, harass, annoy or injure." (Burnett v. Nat. Enquirer, Inc. (1983) 144 Cal.App.3d 991, 1009. Although easy to state, establishing malice can be complex and nuanced and is a concept that both courts and attorneys frequently confuse. Future blog posts will clarify this concept further and discuss the many number of ways in which malice can be demonstrated.