“Mutual Interest” Privilege Against Libel and Slander

California law provides a conditional privilege (not absolute) protecting defendants against claims for libel and slander. It arises from communications without malice by one person to another where both have interest in the matter.

If a defendant knows false information he or she shares with a plaintiff’s prospective employer and the employer decides on that basis not to hire the plaintiff, the plaintiff must show the defendant acted with actual malice.

Proving actual malice requires proof by “clear and convincing” evidence. This is a higher standard than the usual one, proof by a “preponderance of the evidence.” The higher evidence requirement means the plaintiff must prove more than mere negligence.

Clients frequently tell me, “They [alleged] defamer or person who acts on defamatory statements] did not even investigate to find out whether the facts were false!” Lack of prior investigation, however, by a person who makes false statements about another, is not enough to prove malice.