Qualified common interest privilege applied in D.C. defamation case

In Payne v. Clark, No. 09-CV-1492 (D.C. Aug. 4, 2011), the D.C. Court of Appeals held that with respect to a defamation claim, a qualified common interest privilege protects statements made by citizens and other third parties who communicate in good faith with District agencies during an investigation into alleged misconduct by District employees.

However, the Court reversed the trial court's award of summary judgment based on the common interest privilege, finding that the plaintiff's opposition and exhibits were sufficient to raise a factual issue as to whether the defendant's primary purpose in making his statement against the plaintiff was to further the District's and the defendant's employer's common interest in elevator inspections unfettered by an elevator inspector's conflict of interest or bias; or whether his primary purpose was to further his and his employer's interest in punishing the plaintiff for finding elevator violations in the Blake Building.

A statement is protected by the common interest privilege if it is (1) made in good faith, (2) on a subject in which the party communicating has an interest, or in reference to which he has or honestly believes he has a duty (3) to a person who has such a corresponding interest or duty. Whether a statement is privileged is a question of law.

The D.C. Court of Appeals has previously recognized the common interest privilege in the context of statements that were made in good faith to police by private individuals regarding suspected wrongdoing; statements made to allege misconduct of a police officer to his superior; and statements involving communications between church members concerning matters of mutual concern or common interest. The Court has not limited the privilege to employers or organizations reporting information on their own employees or members.

Once the trial court determines that the qualified common interest privilege is applicable, the burden shifts to the plaintiff to rebut the presumption by demonstrating that the statement was made out of express malice or malice in fact, that is, that the defendant was motivated primarily by bad faith or ill will or enmity.