Toker v. Pollak: The Applicability of Absolute Privilege In Defamation Cases


The law of defamation protects individual reputation against the damage inflicted by libelous or slanderous statements. Sometimes, however, the interest in protecting an individual’s reputation is outweighed by the societal need to investigate matters of public concern. Persons then must be encouraged to speak or write freely without being intimidated by the spectre of an ensuing defamation action. Thus, in certain situations, the courts recognize a privilege or immunity which may be absolute or qualified. A qualified privilege affords immunity only if the individual spoke without ill will or malice in fact. An absolute privilege, however, affords complete immunity from liability for spoken or written statements. The grant of absolute privilege represents a determination that the amount of beneficial information gained thereby more than outweighs the possible detriment occasioned by malicious abuse of the opportunity to injure an individual’s reputation.

In Toker v. Pollak, the New York Court of Appeals considered the defendant’s claim for absolute privilege. The Toker case pitted the plaintiff’s right to safeguard and defend his reputation against both the defendant’s plea for immunity and the public’s need to insure the free flow of information to three separate government agencies. In assessing the claim for privilege, the court employed what may be called the “judicial/quasi-judicial” test. Under this test, absolute privilege is granted only to statements made during proceedings which are judicial or quasi-judicial in nature. This Comment first outlines the facts of Toker, and then examines the results reached by use of the judicial/quasijudicial test. The last section suggests that the distinction between proceedings that are judicial or quasi-judicial in nature and those that are not may no longer be the proper focus for the decision whether to grant or deny a statement an absolute privilege. The Comment then proposes an alternative method, better suited to resolving the competing considerations involved in a claim for absolute privilege.

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