qualified privilege in Oregon

1998The trial court concluded that the statements in question fell within a qualified privilege. 4 That qualified privilege that may operate in the employment context has been described as follows: “A statement is conditionally privileged if: (1) it was made to protect the interests of defendants; (2) it was made to protect the interests of plaintiffs employer; or (3) it was on a subject of mutual concern to defendants and the person to whom the statement was made.” Wattenburg v. United Medical Lab., 269 Or 377, 380 , 525 P2d 113 (1974), citing Restatement of Torts, §§ 594-96.

1998The trial court concluded that the statements in question fell within a qualified privilege. 4 That qualified privilege that may operate in the employment context has been described as follows: “A statement is conditionally privileged if: (1) it was made to protect the interests of defendants; (2) it was made to protect the interests of plaintiffs employer; or (3) it was on a subject of mutual concern to defendants and the person to whom the statement was made.” Wattenburg v. United Medical Lab., 269 Or 377, 380 , 525 P2d 113 (1974), citing Restatement of Torts, §§ 594-96.

2010A qualified privilege, by contrast, generally “exists to protect three kinds of statements: (1) those made to protect the defendant’s interests; (2) those made to protect the employer’s interests; or (3) those made on a subject of mutual concern to the defendant and the persons to whom the statement was made.” DeLong, 334 Or at 170 (citing Wallulis, 323 Or at 350 ).

2002A “qualified privilege” requires the plaintiff to prove that the defendant abused the “privileged occasion.” Wallulis, 323 Or at 348 ; see Bank of Oregon v. Independent News, 298 Or 434, 437 , 693 P2d 35 , cert den 474 US 826 (1985) (“Where the qualified privilege of ‘fair comment and criticism’ was applicable, the defendants would not be liable if the publication was made in good faith and without malice.”).

2021See Lewis, 204 Or App at 104 (stating that, “[w]hen a defendant properly raises a qualified privilege, the plain- tiff has the burden of proving that the defendant lost that privilege,” and describing how the privilege may be lost). “ ‘Unless only one conclusion can be drawn from the evi- dence, the determination of the question whether the privi- lege has been abused is for the jury.’ ” Murphy v. Harty, 238 Or 228, 248 , 393 P2d 206 (1964) (quoting Prosser on Torts (2d ed) 629 § 95).2 We need not decide the correctness of the trial court’s ruling on absolute privilege.

2021See Lewis, 204 Or App at 104 (stating that, “[w]hen a defendant properly raises a qualified privilege, the plain- tiff has the burden of proving that the defendant lost that privilege,” and describing how the privilege may be lost). “ ‘Unless only one conclusion can be drawn from the evi- dence, the determination of the question whether the privi- lege has been abused is for the jury.’ ” Murphy v. Harty, 238 Or 228, 248 , 393 P2d 206 (1964) (quoting Prosser on Torts (2d ed) 629 § 95).2 We need not decide the correctness of the trial court’s ruling on absolute privilege.

1996In Wattenburg v. United Medical Lab., 269 Or 377, 380 , 525 P2d 113 (1974), this court explained when a statement is qualifiedly privileged: “A statement is conditionally privileged if: (1) it was made to protect the interests of defendants; (2) it was made to protect the interests of plaintiffs employer; or (3) it was on a subject of mutual concern to defendants and the persons to whom the statement was made.” (Citing Restatement of Torts, §§ 594-96 (1938).) 6 See also Walsh v. Consolidated Freightways, 278 Or 347, 355 , 563 P2d 1205 (1977) (“a former employer has a qualified privilege to mak

1996In Wattenburg v. United Medical Lab., 269 Or 377, 380 , 525 P2d 113 (1974), this court explained when a statement is qualifiedly privileged: “A statement is conditionally privileged if: (1) it was made to protect the interests of defendants; (2) it was made to protect the interests of plaintiffs employer; or (3) it was on a subject of mutual concern to defendants and the persons to whom the statement was made.” (Citing Restatement of Torts, §§ 594-96 (1938).) 6 See also Walsh v. Consolidated Freightways, 278 Or 347, 355 , 563 P2d 1205 (1977) (“a former employer has a qualified privilege to mak

2002A “qualified privilege” requires the plaintiff to prove that the defendant abused the “privileged occasion.” Wallulis, 323 Or at 348 ; see Bank of Oregon v. Independent News, 298 Or 434, 437 , 693 P2d 35 , cert den 474 US 826 (1985) (“Where the qualified privilege of ‘fair comment and criticism’ was applicable, the defendants would not be liable if the publication was made in good faith and without malice.”).

2002A “qualified privilege” requires the plaintiff to prove that the defendant abused the “privileged occasion.” Wallulis, 323 Or at 348 ; see Bank of Oregon v. Independent News, 298 Or 434, 437 , 693 P2d 35 , cert den 474 US 826 (1985) (“Where the qualified privilege of ‘fair comment and criticism’ was applicable, the defendants would not be liable if the publication was made in good faith and without malice.”).

2006A qualified privilege to make a defamatory statement arises when the statement “is made to protect the interests of the plaintiffs employer or it is on a subject of mutual concern to the defendant and those to whom it is made.” Benassi v. Georgia-Pacific, 62 Or App 698, 702 , 662 P2d 760 , adh’d to as modified on recons, 63 Or App 672 , 667 P2d 532 , rev den, 295 Or 730 (1983) (citation omitted).

2006A qualified privilege to make a defamatory statement arises when the statement “is made to protect the interests of the plaintiffs employer or it is on a subject of mutual concern to the defendant and those to whom it is made.” Benassi v. Georgia-Pacific, 62 Or App 698, 702 , 662 P2d 760 , adh’d to as modified on recons, 63 Or App 672 , 667 P2d 532 , rev den, 295 Or 730 (1983) (citation omitted).

1991It insulates defendants from liability for civil damages under section 1983 only if their conduct “does not violate clearly established [federal] statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 US 800, 818 , 102 S Ct 2727 , 73 L Ed 2d 396 (1982).

1991It insulates defendants from liability for civil damages under section 1983 only if their conduct “does not violate clearly established [federal] statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 US 800, 818 , 102 S Ct 2727 , 73 L Ed 2d 396 (1982).

2021Bank of Oregon v. Independent News, 298 Or 434, 437 , 693 P2d 35 , cert den, 474 US 826 (1985).

2002A “qualified privilege” requires the plaintiff to prove that the defendant abused the “privileged occasion.” Wallulis, 323 Or at 348 ; see Bank of Oregon v. Independent News, 298 Or 434, 437 , 693 P2d 35 , cert den 474 US 826 (1985) (“Where the qualified privilege of ‘fair comment and criticism’ was applicable, the defendants would not be liable if the publication was made in good faith and without malice.”).

2021See Lewis v. Carson Oil Company, 204 Or App 99, 103 , 127 P3d 1207 , rev den, 341 Or 245 (2006) (“A qualified privilege to make a defama- tory statement arises when the statement is made to protect the interests of the plaintiff’s employer or it is on a subject of mutual concern to the defendant and those to whom it Cite as 316 Or App 470 (2021) 473 is made.” (Internal quotation marks omitted.)); ORS 30.178 (regarding qualified privilege for employers to disclose information about a former employee’s job performance to a prospective new employer).

2021See Lewis v. Carson Oil Company, 204 Or App 99, 103 , 127 P3d 1207 , rev den, 341 Or 245 (2006) (“A qualified privilege to make a defama- tory statement arises when the statement is made to protect the interests of the plaintiff’s employer or it is on a subject of mutual concern to the defendant and those to whom it Cite as 316 Or App 470 (2021) 473 is made.” (Internal quotation marks omitted.)); ORS 30.178 (regarding qualified privilege for employers to disclose information about a former employee’s job performance to a prospective new employer).

2014Nonetheless, defendant argues that we can affirm the trial court’s judgment on the ground that Salmon’s statements were subject to a qualified privilege because they related to plaintiffs misconduct as a city employee and they were made to government authorities who may be “expected to take official action.” See Demers v. Meuret, 266 Or 252, 255-56 , 512 P2d 1348 (1973) (“‘[C]ommunications made to those who may be expected to take official action of some kind for the protection of some interest of the public’ are protected by a qualified *** privilege.” (Quoting William L.

2014Nonetheless, defendant argues that we can affirm the trial court’s judgment on the ground that Salmon’s statements were subject to a qualified privilege because they related to plaintiffs misconduct as a city employee and they were made to government authorities who may be “expected to take official action.” See Demers v. Meuret, 266 Or 252, 255-56 , 512 P2d 1348 (1973) (“‘[C]ommunications made to those who may be expected to take official action of some kind for the protection of some interest of the public’ are protected by a qualified *** privilege.” (Quoting William L.

2006A qualified privilege to make a defamatory statement arises when the statement “is made to protect the interests of the plaintiffs employer or it is on a subject of mutual concern to the defendant and those to whom it is made.” Benassi v. Georgia-Pacific, 62 Or App 698, 702 , 662 P2d 760 , adh’d to as modified on recons, 63 Or App 672 , 667 P2d 532 , rev den, 295 Or 730 (1983) (citation omitted).

2006A qualified privilege to make a defamatory statement arises when the statement “is made to protect the interests of the plaintiffs employer or it is on a subject of mutual concern to the defendant and those to whom it is made.” Benassi v. Georgia-Pacific, 62 Or App 698, 702 , 662 P2d 760 , adh’d to as modified on recons, 63 Or App 672 , 667 P2d 532 , rev den, 295 Or 730 (1983) (citation omitted).

2022See Bradford v. Mahan, 219 Kan 450, 455, 548 P2d 1223, 1228-29 (1976) (refusing to extend absolute privilege to police officers and stating that “[t]he police should never act with malice or ill will against the citizens of this state without being called to account for their actions,” and “[a] qualified privilege will sufficiently insulate police officers and insure the vigorous enforcement of the law”); Stukuls, 42 NY at 278, 366 NE2d at 833 , 397 NYS2d at 744 (conclud- ing that qualified privilege would adequately protect lower- level officials because “to cloak public officers who do not h

2021See Lewis v. Carson Oil Company, 204 Or App 99, 103 , 127 P3d 1207 , rev den, 341 Or 245 (2006) (“A qualified privilege to make a defama- tory statement arises when the statement is made to protect the interests of the plaintiff’s employer or it is on a subject of mutual concern to the defendant and those to whom it Cite as 316 Or App 470 (2021) 473 is made.” (Internal quotation marks omitted.)); ORS 30.178 (regarding qualified privilege for employers to disclose information about a former employee’s job performance to a prospective new employer).

2018"The doctrine of qualified immunity protects government officials 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." Pearson , 555 U.S. at 231 , 129 S.Ct. 808 (internal quotation marks omitted).

2018"The doctrine of qualified immunity protects government officials 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." Pearson , 555 U.S. at 231 , 129 S.Ct. 808 (internal quotation marks omitted).

2018Compare Thorne I , 726 F.2d at 471 (protecting all "off-duty, *663 personal activities of the type protected by the constitutional guarantees of privacy and free association" that do not "have an impact upon an applicant's on-the-job performance," including, as relevant to both this case and Thorne I , extramarital relationships), with Gaspers v. Ohio Dept. of Youth Services , 648 F.3d 400 , 413 (6th Cir. 2011) (stating that extramarital relationships were not protected under the Sixth Circuit law), and Matusick v. Erie County Water Authority , 757 F.3d 31 , 61 (2d Cir. 2014) (holding that, pr

2018Compare Thorne I , 726 F.2d at 471 (protecting all "off-duty, *663 personal activities of the type protected by the constitutional guarantees of privacy and free association" that do not "have an impact upon an applicant's on-the-job performance," including, as relevant to both this case and Thorne I , extramarital relationships), with Gaspers v. Ohio Dept. of Youth Services , 648 F.3d 400 , 413 (6th Cir. 2011) (stating that extramarital relationships were not protected under the Sixth Circuit law), and Matusick v. Erie County Water Authority , 757 F.3d 31 , 61 (2d Cir. 2014) (holding that, pr

2018Compare Thorne I , 726 F.2d at 471 (protecting all "off-duty, *663 personal activities of the type protected by the constitutional guarantees of privacy and free association" that do not "have an impact upon an applicant's on-the-job performance," including, as relevant to both this case and Thorne I , extramarital relationships), with Gaspers v. Ohio Dept. of Youth Services , 648 F.3d 400 , 413 (6th Cir. 2011) (stating that extramarital relationships were not protected under the Sixth Circuit law), and Matusick v. Erie County Water Authority , 757 F.3d 31 , 61 (2d Cir. 2014) (holding that, pr

2014Our tort case law also makes clear, however, that, if a person’s conduct as an agent or on behalf of another comes within the scope of a privilege, then the person is not liable to the third party.” 341 Or at 350 (internal citation omitted).

2013“The protection of qualified immunity applies regardless of whether the government official’s error is a mistake of law, a mistake of fact, or a mistake based on mixed questions of law and fact.” Id.; see also Anderson v. Creighton, 483 U.S. 635, 638 , 107 S.Ct. 3034 , 97 L.Ed.2d 528 (1987) (qualified immunity provides “government officials with a qualified immunity, shielding them from liability for civil damages ... as long as their actions could have'reasonably been consistent with the rights they are alleged to have violated.”) The doctrine of qualified immunity provides an immunity from s

2013“The protection of qualified immunity applies regardless of whether the government official’s error is a mistake of law, a mistake of fact, or a mistake based on mixed questions of law and fact.” Id.; see also Anderson v. Creighton, 483 U.S. 635, 638 , 107 S.Ct. 3034 , 97 L.Ed.2d 528 (1987) (qualified immunity provides “government officials with a qualified immunity, shielding them from liability for civil damages ... as long as their actions could have'reasonably been consistent with the rights they are alleged to have violated.”) The doctrine of qualified immunity provides an immunity from s

2013Poe v. Haydon, 853 F.2d 418, 424 (6th Cir.1988) (citing Mitchell v. Forsyth, 472 U.S. 511, 526 , 105 S.Ct. 2806 , 86 L.Ed.2d 411 (1985)).

2013The Sixth Circuit “has determined that reliance on counsel’s legal advice constitutes a qualified immunity defense only under ‘extraordinary circumstances,’ and has never found that those circumstances were met.” Silberstein v. City of Dayton, 440 F.3d 306, 318 (6th Cir.2006); see also Ross v. City of Memphis, 423 F.3d 596, 603-604 , 604 n. 3 (6th Cir.2005); York v. Purkey, 14 Fed.Appx. 628, 633-34 (6th Cir.2001); V-1 Oil v. State of Wyo.