Legal Definitions - excess of privilege

Excess of Privilege refers to a situation where someone makes a statement that would normally be protected from a defamation lawsuit by a legal "privilege," but they abuse that protection. This abuse can happen in two main ways:

• Exceeding the Scope: The statement is shared more widely than necessary, or in a manner inappropriate for the privilege. The communication goes beyond the legitimate audience or purpose for which the privilege exists.

• Malicious Intent: The statement is made with a wrongful or harmful motive, rather than for the legitimate purpose the privilege is intended to serve. In such cases, the person uses the privilege as a shield to intentionally cause harm.

Here are some examples to illustrate this concept:

• Example 1 (Exceeding the Scope): Imagine a company's HR director is investigating a complaint about an employee. In a confidential meeting with senior management, the HR director shares details from the complaint, which is a privileged communication to ensure proper internal investigation. However, if the HR director then posts the full details of the complaint, including the employee's name and the allegations, on the company's public intranet forum accessible to all 5,000 employees, this would likely be considered an excess of privilege. The information was published far beyond the necessary audience for the investigation, losing its protected status.

• Example 2 (Malicious Intent): Consider a former employer providing a reference for a past employee. They have a qualified privilege to share honest assessments of the employee's performance with a prospective new employer. If the former employer genuinely believes the employee was a poor performer and states that truthfully, it's protected. However, if the former employer, knowing the employee was excellent, deliberately fabricates negative information and shares it with the new employer solely to sabotage the employee's job prospects out of personal animosity, this would be an excess of privilege due to malicious intent. The privilege is lost because it was used for an improper, harmful purpose.

• Example 3 (Both - Contextual): A city council member is speaking during an official council meeting, where their statements are typically protected by absolute privilege (meaning they cannot be sued for defamation for anything said during the meeting). During a debate about a new zoning proposal, the council member makes a statement accusing a local business owner, who is not present and not directly involved in the zoning discussion, of committing tax fraud, providing no evidence, and doing so purely to damage the business owner's reputation because of a personal grudge. While the setting (council meeting) grants privilege, the statement's irrelevance to the official business and the clear malicious intent to harm an individual's reputation could be seen as an excess of privilege, potentially stripping away the protection.