qualified privilege in Virginia

2014See id. at 576 (“In summary, we hold that [plaintiff’s] tenure application process was a privileged occasion and any defamatory statements communicated by the defendants . . . were entitled to a qualified privilege which shields the defendants from liability unless a showing of malice is made by clear and convincing evidence.”) (emphasis added).

2013A qualified privilege attaches to “[c]ommunications between persons on a subject in which the persons have an interest or duty.” Larimore v. Blaylock, 259 Va. 568, 572 , 528 S.E.2d 119, 121 (2000).

2013In Great Coastal Express, Inc. v. Ellington, 230 Va. 142, 154 , 334 S.E.2d 846, 854 (1985), we approved a jury instruction on the elements of common law malice that will serve to defeat a qualified privilege that “incorporate[d] language used in a 13 number of our earlier cases which discuss elements of common law malice and abuse of privilege.” A non-exhaustive list of such elements included a showing that: (1) the statements were made with knowledge that they were false or with reckless disregard for their truth, Raytheon Technical Servs.

2013In Great Coastal Express, Inc. v. Ellington, 230 Va. 142, 154 , 334 S.E.2d 846, 854 (1985), we approved a jury instruction on the elements of common law malice that will serve to defeat a qualified privilege that “incorporate[d] language used in a 13 number of our earlier cases which discuss elements of common law malice and abuse of privilege.” A non-exhaustive list of such elements included a showing that: (1) the statements were made with knowledge that they were false or with reckless disregard for their truth, Raytheon Technical Servs.

2024The Supreme Court has also stated, “A qualified privilege is lost if a plaintiff proves by clear and convincing evidence that the defamatory words were spoken with common-law malice.” Id. at 55 .

2005Such a qualified privilege may be defeated by clear and convincing evidence that the defamatory words were spoken with common-law malice. 8 Smalls v. Wright, 241 Va. 52, 55 , 399 S.E.2d 805, 808 (1991).

2010Common-law malice is “behavior actuated by motives of personal spite, or ill-will, independent of the occasion on which the communication was made,” Gazette v. Harris, 229 Va. 1, 36— 37 (1985), and the plaintiff has the burden of proving malice to rebut a qualified privilege, Spencer v. Looney, 116 Va. 767, 11A (1914).

2010In order to overcome a qualified privilege, the Plaintiff must plead and prove that the behavior of the Defendant was “actuated by motives of personal spite, or ill-will, independent of the occasion on which the communication was made.” The Gazette, Inc. v. Harris, 229 Va. 1, 18, 325 S.E.2d 713, 727 (1985).

2011"Qualified privilege," on the other hand, "exists in a much larger number of cases." Id. at 590 , 118 S.E.2d at 670 (internal quotation marks omitted).

2011"Qualified privilege," on the other hand, "exists in a much larger number of cases." Id. at 590 , 118 S.E.2d at 670 (internal quotation marks omitted).

2013Once a qualified privilege has attached to a communication, the plaintiff has the burden to prove that the privilege has been lost or abused, Preston v. Land, 220 Va. 118, 121 , 255 S.E.2d 509, 511 (1979), which must be shown by clear and convincing proof.

2013Once a qualified privilege has attached to a communication, the plaintiff has the burden to prove that the privilege has been lost or abused, Preston v. Land, 220 Va. 118, 121 , 255 S.E.2d 509, 511 (1979), which must be shown by clear and convincing proof.

2007After determining that the evidence was sufficient to support the punitive damage award, we held that the failure to give a qualified privilege instruction was harmless error because the jury in awarding punitive damages "was required to and did find that the statements were made with actual malice." Id. at 44 , 624 S.E.2d at 71 .

2007After determining that the evidence was sufficient to support the punitive damage award, we held that the failure to give a qualified privilege instruction was harmless error because the jury in awarding punitive damages "was required to and did find that the statements were made with actual malice." Id. at 44 , 624 S.E.2d at 71 .

2005The Court said: In other words, to avoid the qualified privilege, plaintiff must show [by clear and convincing evidence] that “the communication was actuated by some sinister or corrupt motive such as hatred, revenge, personal spite, ill will, or desire to injure the plaintiff.” [Southeastern Tidewater Opportunity Project, Inc. v. Bade, 246 Va. 273, 276 , 435 S.E.2d 131, 132-33 (1933)].

2005The Court said: In other words, to avoid the qualified privilege, plaintiff must show [by clear and convincing evidence] that “the communication was actuated by some sinister or corrupt motive such as hatred, revenge, personal spite, ill will, or desire to injure the plaintiff.” [Southeastern Tidewater Opportunity Project, Inc. v. Bade, 246 Va. 273, 276 , 435 S.E.2d 131, 132-33 (1933)].

2013Great Coastal Express, Inc. v. Ellington, 230 Va. 142, 153 , 334 S.E.2d 846, 853 (1985) (citing Taylor v. Grace, 166 Va. 138, 144 , 184 S.E. 211, 213 (1936)).

2013Great Coastal Express, Inc. v. Ellington, 230 Va. 142, 153 , 334 S.E.2d 846, 853 (1985) (citing Taylor v. Grace, 166 Va. 138, 144 , 184 S.E. 211, 213 (1936)).

1997The trial court concluded that in this case, the “different burden” should be a “showing of malice or a showing that the improper conduct is so egregious as to override the qualified privilege.” The trial court’s use of the defamation analogy was based on Chaves v. Johnson, 230 Va. 112, 121 , 335 S.E.2d 97, 103 (1985), in which we recognized a similarity between the affirmative defense of justification or privilege in a tortious interference with contract suit and the defense of qualified privilege in a defamation suit.

1997The trial court concluded that in this case, the “different burden” should be a “showing of malice or a showing that the improper conduct is so egregious as to override the qualified privilege.” The trial court’s use of the defamation analogy was based on Chaves v. Johnson, 230 Va. 112, 121 , 335 S.E.2d 97, 103 (1985), in which we recognized a similarity between the affirmative defense of justification or privilege in a tortious interference with contract suit and the defense of qualified privilege in a defamation suit.

2010A distinction must be made between the state’s absolute immunity and the qualified immunity of state employees and officials, which depends on the “function they perform and the manner of performance.” James, 221 Va. at 53 , 267 S.E.2d at 110 .

2008A fuller exposition of the doctrine of qualified immunity is the “four factor test” first set out va James, supra, 221 Va. at 53 , 282 S.E.2d at 869 .

2026First Amendment protected activity” and “compelling [him] to write a letter of acknowledgement.” “[G]overnment officials performing discretionary functions, generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Cromartie v. Billings, 298 Va. 284 , 299-300 (2020) (alteration in original) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)); see also Taylor v. Barkes, 575 U.S. 822, 825 (2015) (“Qualified immunity shields government officials from

2026Here, the circuit court applied the two-part qualified immunity test with respect to Lohr’s compelled speech claim and found that the claim failed to defeat qualified immunity on both prongs; that is, the circuit court found that Lohr both failed to show a violation of a constitutional right and that the right was one “of which a reasonable person would have known.” Cromartie, 298 Va. at 300 (quoting Harlow, 457 U.S. at 818 ).

1991Instruction H accurately incorporates language used in various of our cases that have discussed the elements of common-law malice and abuse of a qualified privilege. 1 See Ellington, 230 Va. at 153-54 , 334 S.E.2d at 853-54 ; see, e.g., Preston v. Land, 220 Va. 118, 121 , 255 S.E.2d 509, 511 (1979) (defamatory words uttered under qualified privilege are actionable if actuated by “hatred, revenge, personal spite, ill will, or desire to injure” plaintiff); Crawford and Company v. Graves, 199 Va. 495, 499 , 100 S.E.2d 714, 717 (1957) (privilege lost if words used were “disproportioned in strength

1991Instruction H accurately incorporates language used in various of our cases that have discussed the elements of common-law malice and abuse of a qualified privilege. 1 See Ellington, 230 Va. at 153-54 , 334 S.E.2d at 853-54 ; see, e.g., Preston v. Land, 220 Va. 118, 121 , 255 S.E.2d 509, 511 (1979) (defamatory words uttered under qualified privilege are actionable if actuated by “hatred, revenge, personal spite, ill will, or desire to injure” plaintiff); Crawford and Company v. Graves, 199 Va. 495, 499 , 100 S.E.2d 714, 717 (1957) (privilege lost if words used were “disproportioned in strength

1985We held in Montgomery Ward v. Nance, 165 Va. 363, 383 , 182 S.E. 264, 272 (1935), in Chesapeake Ferry Co., 155 Va. at 908, 156 S.E. at 441, and in Aylor, 143 Va. at 655 , 129 S.E. at 699 , that common-law malice is shown, sufficient to defeat a qualified privilege, by proof that the speaker uttered defamatory words without believing them to be true, or lacked reasonable or probable grounds for believing them to be true.

1985We held in Montgomery Ward v. Nance, 165 Va. 363, 383 , 182 S.E. 264, 272 (1935), in Chesapeake Ferry Co., 155 Va. at 908, 156 S.E. at 441, and in Aylor, 143 Va. at 655 , 129 S.E. at 699 , that common-law malice is shown, sufficient to defeat a qualified privilege, by proof that the speaker uttered defamatory words without believing them to be true, or lacked reasonable or probable grounds for believing them to be true.

2012However, the privilege attaching to such occasions is a qualified privilege which may be defeated if the plaintiff proves that the defamatory statement was made maliciously.” Larimore v. Blaylock, 259 Va. 568, 572 , 528 S.E.2d 119 (2000) (citing Chalkley v. Atlantic Coast Line RR., 150 Va. 301, 306 , 143 S.E. 631 (1928)).

2012However, the privilege attaching to such occasions is a qualified privilege which may be defeated if the plaintiff proves that the defamatory statement was made maliciously.” Larimore v. Blaylock, 259 Va. 568, 572 , 528 S.E.2d 119 (2000) (citing Chalkley v. Atlantic Coast Line RR., 150 Va. 301, 306 , 143 S.E. 631 (1928)).

2005The Court recognized that “while we have applied the doctrine of qualified privilege in cases involving alleged defamatory statements made ‘between persons on a subject in which the persons have an interest or duty,’ we have also held that this qualified privilege may be defeated by proof that the defamatory statements were made maliciously.” Id.

2005Id.

2000See Southeastern Tidewater Opportunity Project, Inc. v. Bade, 246 Va. 273 , 435 S.E.2d 131 (1993); Oberbroeckling v. Lyle, 234 Va. 373 , 362 S.E.2d 682 (1987); Great Coastal Express, Inc. v. Ellington, 230 Va. 142 , 334 S.E.2d 846 (1985); Montgomery Ward & Co. v. Nance, 165 Va. 363 , 182 S.E. 264 (1935); Thalhimer Bros. v. Shaw, 156 Va. 863 , 159 S.E. 87 (1931); Chesapeake Ferry Co. v. Hudgins, 155 Va. 874 , 156 S.E. 429 (1931); and Chalkley, supra. *573 The protection of a qualified privilege is afforded because: [p]ublic policy and the interest of society demand that in cases such as this an

2000See Southeastern Tidewater Opportunity Project, Inc. v. Bade, 246 Va. 273 , 435 S.E.2d 131 (1993); Oberbroeckling v. Lyle, 234 Va. 373 , 362 S.E.2d 682 (1987); Great Coastal Express, Inc. v. Ellington, 230 Va. 142 , 334 S.E.2d 846 (1985); Montgomery Ward & Co. v. Nance, 165 Va. 363 , 182 S.E. 264 (1935); Thalhimer Bros. v. Shaw, 156 Va. 863 , 159 S.E. 87 (1931); Chesapeake Ferry Co. v. Hudgins, 155 Va. 874 , 156 S.E. 429 (1931); and Chalkley, supra. *573 The protection of a qualified privilege is afforded because: [p]ublic policy and the interest of society demand that in cases such as this an

1998Hollins, 19 Va. App. at 226 , 450 S.E.2d at 399 .

1998Hollins, 19 Va. App. at 226 , 450 S.E.2d at 399 .

1991Instruction H accurately incorporates language used in various of our cases that have discussed the elements of common-law malice and abuse of a qualified privilege. 1 See Ellington, 230 Va. at 153-54 , 334 S.E.2d at 853-54 ; see, e.g., Preston v. Land, 220 Va. 118, 121 , 255 S.E.2d 509, 511 (1979) (defamatory words uttered under qualified privilege are actionable if actuated by “hatred, revenge, personal spite, ill will, or desire to injure” plaintiff); Crawford and Company v. Graves, 199 Va. 495, 499 , 100 S.E.2d 714, 717 (1957) (privilege lost if words used were “disproportioned in strength

1991Instruction H accurately incorporates language used in various of our cases that have discussed the elements of common-law malice and abuse of a qualified privilege. 1 See Ellington, 230 Va. at 153-54 , 334 S.E.2d at 853-54 ; see, e.g., Preston v. Land, 220 Va. 118, 121 , 255 S.E.2d 509, 511 (1979) (defamatory words uttered under qualified privilege are actionable if actuated by “hatred, revenge, personal spite, ill will, or desire to injure” plaintiff); Crawford and Company v. Graves, 199 Va. 495, 499 , 100 S.E.2d 714, 717 (1957) (privilege lost if words used were “disproportioned in strength

2026First Amendment protected activity” and “compelling [him] to write a letter of acknowledgement.” “[G]overnment officials performing discretionary functions, generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Cromartie v. Billings, 298 Va. 284 , 299-300 (2020) (alteration in original) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)); see also Taylor v. Barkes, 575 U.S. 822, 825 (2015) (“Qualified immunity shields government officials from

2026But simply citing a retaliation case and depending on a defendant’s inference therefrom is not providing the “plain and explicit language” required for a “ground of complaint.” Lehmann, 80 Va. App. at 812 (quoting Grayson, 300 Va. at 69). - 15 - or constitutional right that was clearly established at the time of the challenged conduct.” (quoting Reichle v. Howards, 566 U.S. 658, 664 (2012))).

2026First Amendment protected activity” and “compelling [him] to write a letter of acknowledgement.” “[G]overnment officials performing discretionary functions, generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Cromartie v. Billings, 298 Va. 284 , 299-300 (2020) (alteration in original) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)); see also Taylor v. Barkes, 575 U.S. 822, 825 (2015) (“Qualified immunity shields government officials from

2025Qualified immunity, like absolute immunity, is “an immunity from suit rather than a mere defense to liability.” Id. (quoting Pearson v. Callahan, 555 U.S. 223, 237 (2009)).

2025See Graham, 473 U.S. at 165 (addressing “official-capacity” in the context of 42 U.S.C. § 1983 suits).