Malicious Statements

Key point 4-02.03. A number of defenses are available to one accused of defamation. These include truth, statements made in the course of judicial proceedings, consent, and self-defense. In addition, statements made to church members about a matter of common interest to members are protected by a "qualified privilege," meaning that they cannot be defamatory unless they are made with malice. In this context, malice means that the person making the statements knew that they were false or made them with a reckless disregard as to their truth or falsity. This privilege will not apply if the statements are made to nonmembers.

A Louisiana appeals court ruled that a church's finance committee members did not commit defamation by sending a letter to a denominational office recounting several examples of financial irregularities involving a former pastor. A church hired a new pastor ("Pastor Tim"). Shortly after being installed, Pastor Tim appointed several persons (the "defendants") to the church's finance council. Pursuant to their duties, the finance council conducted a review of church finances. After encountering difficulties in reconciling some financial records and locating some church property the council members sent a signed letter to a regional denominational office (the "regional church") explaining the financial irregularities and missing items of property. The letter noted that the church had paid for the remodeling of property owned by the former pastor, and had paid his personal cell phone bills. It also described missing church property (a piano, television, commercial stove, pool table, and an expensive piece of artwork).

Upon learning of this letter Pastor Tim sued the defendants for defamation. The lawsuit alleged that the defendants failed to keep the contents of the letter to the regional church confidential by relaying some of the information to several church members, and wrongfully accused him of theft and receipt of stolen property. A trial court dismissed the lawsuit on the ground that the letter in question was a conditionally privileged communication. Pastor Tim appealed.

A state appeals court noted that defamation is "a tort involving an invasion of a person's interest in his or her reputation and good name" that "tends to harm the reputation of another so as to lower the person in the estimation of the community, deter others from associating or dealing with the person, or otherwise expose the person to contempt or ridicule." To prove defamation, a plaintiff must show: "(1) a false and defamatory statement concerning another; (2) an unprivileged publication to a third party; (3) fault (negligence or greater) on the part of the publisher; and (4) resulting injury."

In this case the defendants argued, and the trial court found, that the statements made in the letter to the regional church were protected by a qualified or conditional privilege. The court observed: "The doctrine of privilege rests upon the notion that sometimes, as a matter of public policy, in order to encourage the free communication of views in certain defined instances, one is justified in communicating defamatory information to others without incurring liability." The court noted that a conditional privilege exists in a limited number of situations, such as when "a statement is made in good faith, on a matter in which the person making the statement had an interest or duty, and to another person with a corresponding interest or duty. If reasonable grounds exist for believing a statement to be true, the statement is made in good faith."

A conditional privilege may be defeated, however, if the privilege was abused. This can occur if a person makes a statement that malice, meaning that he or she knew it to be false, acted "in reckless disregard" as to its truthfulness, or negligently failed to determine its truthfulness. Pastor Tim claimed that the defendants acted with malice in several ways, including disclosing the communication to third parties, and failing to research and communicate the matter in a manner so as not to defame him. He claimed that based on the defendants' backgrounds as professionals and business persons with experience in accounting, they acted negligently in failing to adequately investigate the alleged discrepancies before sending the letter. Pastor Tim produced several letters from parishioners claiming to have overheard others talking about the alleged financial discrepancies and missing church property as evidence that the defendants abused the privilege by sharing the allegedly privileged information with third parties.

The court concluded that the letter was protected by a qualified privilege and therefore was not defamatory, and that the privilege was not lost through any malicious acts of the defendants:

The finance council had a duty to review the financial reports and certify the movable property inventories of the church. Pursuant to this duty, defendants reviewed and attempted to reconcile the financial records and when they were unable to do so, contacted the [regional church] with their concerns in writing and asked for assistance in determining how to resolve the discrepancies. As members of the finance council, defendants' statements contained in the letter to the regional church were privileged. Pastor Tim produced no evidence to support a contention that the finance council abused the privilege by knowingly making false statements or relaying false information about Pastor Tim in bad faith.

Application. This case illustrates the importance of the "qualified" or "conditional" privilege to defamation claims. In many states, any statements that are communicated to church members about matters of common interest are protected by a qualified privilege in the sense that they cannot be defamatory without proof of malice. The letter the defendants sent to the regional church concerned a matter of common interest, and was not made with malice. As a result, the defendants were not guilty of defamation. Roux v. Pflueger, 16 So.3d 590 (La. App. 2009).

This Recent Development first appeared in Church Law & Tax Report, March/April 2010.