Key Takeaways

  • Privilege in tort law excuses conduct that would otherwise be a tort when serving socially important interests.
  • Courts distinguish between absolute privilege (immunity regardless of intent) and qualified privilege (protection only if exercised in good faith and without malice).
  • Common examples include self-defense, defense of others, consent, necessity, and shopkeeper’s privilege.
  • Privileges balance competing interests—such as personal rights, public policy, and commercial needs.
  • Privilege remains an evolving doctrine: courts may recognize new forms under unique circumstances.

Privilege is any circumstance that justifies or excuses a prima facie tort. It can be said that privilege recognizes a defendant's action stemmed from an interest of social importance - and that society wants to protect such interests by not punishing those who pursue them. Privilege can be argued whenever a defendant can show that he acted from a justifiable motive. While some privileges have long been recognized, the court may create a new privilege for particular circumstances - privilege as an affirmative defense is a potentially ever-evolving doctrine. Such newly created or circumstantially recognized privileges are referred to as residual justification privileges.

Common Privileges Recognized by Courts

Courts frequently apply privileges in recurring contexts:

  1. Self-Defense: A person may use reasonable force to protect themselves from imminent harm.
  2. Defense of Others: Extends protection to those aiding third parties under threat.
  3. Consent: If a plaintiff voluntarily agrees to the defendant’s conduct, no tort arises.
  4. Necessity: Permits interference with another’s rights to prevent greater harm, such as entering property during emergencies.
  5. Authority of Law: Actions carried out under legal authority—such as arrests—may be privileged.
  6. Shopkeeper’s Privilege: Merchants may detain suspected shoplifters briefly and reasonably to investigate, so long as the detention is justified and limited.

If there is no inquiry into the intent or purpose of the defendant, then the privilege is referred to as "absolute privlege." Courts generally ask three questions when looking at privilege: 1) When should a defendant's motive or purpose be seen as a justifiable reason for interfering with whatever interests were effected? What means are justified to accomplish the defendant's goal if the purpose is found to be justifiable? Under what circumstances should a defendant's privilege excuse his mistakes as to the law or the situation when he is pursuing a legitimate purpose by legitimate means?

Types of Privileges in Tort Law

Privileges are often grouped into absolute and qualified categories:

  • Absolute Privilege: Provides complete immunity, regardless of motive or good faith. Common in judicial or legislative settings, where open discussion must be protected.
  • Qualified Privilege: Applies if the actor’s purpose is justifiable and carried out in good faith. Qualified privileges may be lost if abused, such as acting with malice or beyond reasonable necessity.

Policy Considerations Behind Privilege

The doctrine of privilege reflects a balance between individual rights and societal interests. Legislatures and courts recognize that:

  • Some conduct, while technically interfering with another’s interests, serves a greater public good (e.g., reporting crimes, legislative debate).
  • Privilege doctrines encourage open communication (such as in courts or legislatures), self-protection, and economic stability (through merchant protections).
  • The scope of privilege may vary across jurisdictions and evolve over time as new societal needs emerge.

Frequently Asked Questions

  1. What is privilege in tort law?
    Privilege excuses conduct that would otherwise be a tort when done to serve a socially important or legally protected interest.
  2. What is the difference between absolute and qualified privilege?
    Absolute privilege provides complete immunity, while qualified privilege protects only if exercised reasonably and without malice.
  3. Is self-defense considered a privilege?
    Yes. Self-defense is one of the most common privileges, allowing a person to use reasonable force to prevent harm.
  4. What is the shopkeeper’s privilege?
    It permits merchants to detain suspected shoplifters briefly if done reasonably and for investigation purposes.
  5. Can new privileges be recognized by courts?
    Yes. Courts may develop new privileges under unique circumstances, reflecting evolving public policy needs.

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