privilege

A particular and peculiar benefit or advantage enjoyed by a person, company, or class, beyond the common advantages of other citizens. An exceptional or extraordinary power or exemption. A peculiar right, advantage, exemption, power, franchise, or immunity held by a person or class, not generally possessed by others.

In tort law, the ability to act contrary to another individual's legal right without that individual having legal redress for the consequences of that act; usually raised by the actor as a defense.

An exemption from some burden or attendance, with which certain persons are indulged, from a supposition of law that the stations they fill, or the offices they are engaged in, are such as require all their time and care, and that, therefore, without this indulgence, it would be impracticable to execute such offices to that advantage which the public good requires. That which releases one from the performance of a duty or obligation, or exempts one from a liability which he would otherwise be required to perform, or sustain in common with all other persons.

See also exemption

- immunity

See also doctor-patient privilege

- executive privilege

- husband-wife privilege

- journalist's privilege

- legislative immunity

- marital communications privilege

- newsmen's privilege

- patient-physician privilege

- priest-penitent privilege

- privileged communications

- right

- state secrets privilege.

Attorney-client, doctor-patient, etc. privilege.

See privileged communications, and also specific privileges.

Civil law.

A right which the nature of a debt gives to a creditor, and which entitles him to be preferred before other creditors. Civil Code La. art. 3186.

It is merely an accessory of the debt which it secures, and falls with the extinguishment of the debt. The civil law privilege became, by adoption of the admiralty courts, the admiralty lien. The J. E. Rumbell, 148 U.S. 1, 13 S.Ct. 498, 37 L.Ed 345.

Communications.

See privileged communications.

@ deliberative process privilege

This governmental privilege permits government to withhold documents that reflect advisory opinions, recommendations and deliberations comprising part of a process by which government decisions and policies are formulated, and was developed to promote frank and independent discussion among those responsible for making governmental decisions and to protect against premature disclosure of proposed agency policies or decisions. F.T.C. v. Warner Communications Inc., C.A.Cal., 742 F.2d 1156, 1161.

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Discovery.

When interrogatories, depositions or other forms of discovery seek information which is otherwise privileged, the party from whom it is sought may claim his privilege. Fed.R.Civil P. 26; Fed.R.Crim.P. 16.

See also protective order

- work product rule.

Evidence.

See privileged communications

- privileged evidence.

@ Executive privilege

The protection afforded to confidential presidential communications. However, the generalized need for confidentiality of high level communications cannot sustain an absolute unqualified presidential privilege. U. S. v. Nixon, 418 U.S. 683, 94 S.Ct. 3090, 41 L.Ed.2d 1039.

See also executive privilege.

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See also journalist's privilege

- newsmen's privilege

- shield laws.

libel and slander.

An exemption from liability for the speaking or publishing of defamatory words concerning another, based on the fact that the statement was made in the performance of a political, judicial, social, or personal duty.

Privilege is either absolute or conditional. The former protects the speaker or publisher without reference to his motives or the truth or falsity of the statement. This may be claimed in respect, for instance, to statements made in legislative debates, in reports of military officers to their superiors in the line of their duty, and statements made by judges, witnesses, and jurors in trials in court.

@ conditional privilege

Conditional privilege (called also "qualified privilege") will protect the speaker or publisher unless actual malice and knowledge of the falsity of the statement is shown. This may be claimed where the communication related to a matter of public interest, or where it was necessary to protect one's private interest and was made to a person having an interest in the same matter. Saroyan v. Burkett, 57 Cal.2d 706, 21 Cal.Rptr. 557, 558, 371 P.2d 293.

For defense of "constitutional privilege" in libel actions, see libel.

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Maritime law.

An allowance to the master of a ship of the same general nature with primage, being compensation, or rather a gratuity, customary in certain trades, and which the law assumes to be a fair and equitable allowance, because the contract on both sides is made under the knowledge of such usage by the parties

Parliamentary law

The right of a particular question, motion, or statement to take precedence over all other business before the house and to be considered immediately, notwithstanding any consequent interference with or setting aside the rules of procedure adopted by the The matter may be one of "personal privilege," where it concerns one member of the house in his capacity as a legislator, or of the "privilege of the house," where it concerns the rights, immunities, or dignity of the entire body, or of "constitutional privilege," where it relates to some action to be taken or some order of proceeding expressly enjoined by the constitution

@ privilege from arrest

A privilege extended to certain classes of persons, either by the rules of international law, the policy of the law, or the necessities of justice or of the administration of government, whereby they are exempted from arrest on civil process, and, in some cases, on criminal charges, either permanently, as in the case of a foreign minister and his suite, or temporarily, as in the case of members of the legislature, parties and witnesses engaged in a particular suit, etc. Art. I, No. 6, U.S.Const.

See also immunity

@ privilege tax

A tax on the privilege of carrying on a business or occupation for which a license or franchise is required. Gulf & Ship Island R. Co. v. Hewes, 183 U.S. 66, 22 S.Ct. 26, 46 L.Ed. 86.

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Torts.

Privilege is the general term applied to certain rules of law by which particular circumstances justify conduct which otherwise would be tortious, and thereby defeat the tort liability (or defense) which, in the absence of such circumstances, ordinarily would follow from that conduct. In other words, even if all of the facts necessary to a prima facie case of tort liability can be proved, there are additional facts present sufficient to establish some privilege, and therefore defendant has committed no tort. Privileges thus differ from other defenses, such as contributory negligence, which operate to bar plaintiffs recovery but do not negate the tortious nature of defendant's conduct. Conversely, plaintiffs privilege may defeat a defense which defendant otherwise might have had. The term and concept of privilege apply primarily to the intentional torts, but also appear in other areas, such as defamation.

See libel and slander, above.

A privilege may be based upon:

(a) the consent of the other affected by the actor's conduct, or

(b) the fact that its exercise is necessary for the protection of some interest of the actor or of the public which is of such importance as to justify the harm caused or threatened by its exercise, or

(c) the fact that the actor is performing a function for the proper performance of which freedom of action is essential. Restatement, Second, Torts, No. 10. Privileges may be divided into two general categories:

(1) consent, and

(2) privileges created by law irrespective of consent. In general, the latter arise where there is some important and overriding social value in sanctioning defendant's conduct, despite the fact that it causes plaintiff harm. Privilege is an affirmative defense which must be pleaded by defendant. Fed.R.Civil P. 8(c).

@ writ of privilege

A common law process to enforce or maintain a privilege; particularly to secure the release of a person arrested in a civil suit contrary to his privilege

@ privilege against self-incrimination

The privilege derived from the Fifth Amendment, U.S.Const., and similar provisions in the constitutions of states. It requires the government to prove a criminal case against the defendant without the aid of the defendant as a witness against himself, though it protects only communications, not physical evidence such as handwriting and fingerprints.

It is invocable by any witness who is called to the witness stand against his wishes whether the proceeding be a trial or grand jury hearing or a proceeding before an investigating body, but it is waived when the witness voluntarily takes the witness stand.

See also immunity

- link-in-chain

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