California Civil Code Section 47: Privileges and Anti-SLAPP

California Civil Code Section 47 makes certain communications immune from defamation lawsuits and related tort claims. It does this through four separate privileges: an absolute privilege for statements made in the proper discharge of an official duty (subdivision a), an absolute privilege for statements made in judicial, legislative, and other official proceedings (subdivision b), a conditional privilege for communications between people who share an interest in the subject (subdivision c), and a privilege for fair and true reports of public proceedings (subdivision d). If someone is suing you over something you said or wrote, or you are trying to figure out whether you can sue over something said about you, Section 47 usually decides whether the case can go anywhere.

The Litigation Privilege in Subdivision (b)

Subdivision (b) is the workhorse of the statute. It protects statements made in any legislative proceeding, judicial proceeding, other official proceeding authorized by law, or in the initiation or course of a proceeding authorized by law and subject to judicial review.¹ The protection is absolute. It applies even if the speaker knew the statement was false, even if the speaker acted out of spite, and even if real harm resulted.

The California Supreme Court in Silberg v. Anderson (1990) refused to let lower courts narrow the privilege by asking whether applying it served the “interest of justice” in a given case.² Within its scope, the privilege really is absolute.

Two features of subdivision (b) surprise most people. First, it is not limited to defamation. California courts have used it to block interference-with-contract claims, intentional infliction of emotional distress claims, and other “derivative tort actions” that grow out of litigation-related communications.² Recasting a defamation theory as some other tort does not defeat the privilege.

Second, the privilege reaches back before a lawsuit is filed. A prelitigation demand letter is the classic example. Because a demand letter is the first step toward suit, courts treat it as exactly the kind of communication subdivision (b) was written to protect. Settlement negotiations, communications with potential witnesses, and other prelitigation exchanges qualify as long as they are logically related to litigation that is pending or genuinely contemplated. The privilege attaches to the setting, not to the courthouse address.

The Five Situations Where the Litigation Privilege Does Not Apply

The statute itself carves five specific communications out of subdivision (b). If your dispute falls into one of these boxes, the absolute privilege is off the table.

Pleadings or affidavits in a marital dissolution or legal separation action that target someone who is not a party seeking relief, unless the pleading is verified, made without malice, based on reasonable belief in its truth, and relevant to the issues in the case.¹
Communications made to further the intentional destruction or alteration of physical evidence.¹
Knowingly concealing the existence of an insurance policy during a judicial proceeding.
A recorded lis pendens that does not identify an already-filed action actually affecting title to or possession of the real property in question.¹
A report to law enforcement falsely accusing someone of criminal activity, or made with reckless disregard for whether the accusation is true.¹

The false-police-report exception matters the most in day-to-day disputes, because reports to law enforcement would otherwise sit comfortably within subdivision (b) as communications in an official proceeding. The legislature decided the potential for abuse was too high.

The Common-Interest Privilege in Subdivision (c)

Subdivision (c) works on a different theory. It is conditional, not absolute, and it protects a communication made without malice to a person who has an interest in the information, by a speaker who either shares that interest, has a relationship with the recipient suggesting an innocent motive, or was asked by the recipient to provide the information.¹

Everyday examples: a board member telling other board members about suspected misconduct, a neighbor warning others about a safety concern in the community, or an organization circulating a complaint among the people responsible for investigating it. The common thread is that the speaker and the audience both have a real reason to be in the conversation.

Who Has to Prove Malice

The most litigated question under subdivision (c) is the burden of proof on malice. The California Supreme Court answered it in Lundquist v. Reusser (1994): the defendant must first show the communication was made on a privileged occasion, and then the burden shifts to the plaintiff to prove the statement was made with malice.³ The plaintiff cannot win by pointing to the defendant’s failure to prove good faith. The plaintiff has to affirmatively show bad faith.

Malice here means the speaker knew the statement was false or made it with reckless disregard for its truth. That is a high bar, and it is why many common-interest communications survive a defamation challenge even when the statement turns out to be wrong.

Employer References

Subdivision (c) has a specific rule for job references. It protects a current or former employer’s communication about a job applicant’s performance or qualifications when the communication is based on credible evidence, made without malice, and given in response to a request from someone the employer reasonably believes is a prospective employer.¹ The statute also removes protection for communications about an applicant’s constitutionally protected speech or activities.

Two limits are worth pinning down. The employer must be responding to a request, not volunteering damaging information, and the recipient must actually be a prospective employer. A negative reference sent to someone outside that category falls back into ordinary defamation exposure.

Official Duty and Fair Report Privileges

Subdivision (a) protects statements made in the proper discharge of an official duty. That covers government officials acting within their official capacity, and like the litigation privilege it is absolute regardless of motive or accuracy.¹

Subdivision (d) protects fair and true reports of public official proceedings. This is the privilege journalists and media organizations rely on when they report on court hearings, legislative sessions, and similar public proceedings. So long as the report is a fair and accurate account of what happened, the publisher is shielded even if the underlying statements being reported were themselves defamatory.

Section 47 and Anti-SLAPP Motions

Section 47 rarely stands alone in litigation. It usually appears alongside California’s anti-SLAPP statute, Code of Civil Procedure Section 425.16, which gives defendants a fast-track way to dismiss lawsuits aimed at silencing protected speech or petitioning activity.

The anti-SLAPP motion has two steps. The defendant first has to show the lawsuit targets conduct arising from the exercise of free speech or petition rights in connection with a public issue. If that showing succeeds, the burden shifts to the plaintiff to demonstrate a probability of prevailing on the claim.⁴

Section 47 does its work at step two. If the communication is covered by the litigation privilege or the common-interest privilege, the plaintiff cannot show a probability of prevailing, because the privilege provides a substantive defense on the merits. A defendant who wins the motion is entitled to recover attorney fees and costs from the plaintiff.⁴ Section 47 supplies the shield; the anti-SLAPP motion is the procedural device for raising that shield early, before the case eats months of discovery.

Where the Privilege Runs Out

Beyond the five statutory exceptions, a few practical limits are worth understanding.

Context controls. A statement made during a deposition is privileged. The same statement repeated at a dinner party is not. An attorney who says something defamatory about opposing counsel during a court hearing is protected; the same attorney repeating it to a reporter in the parking lot afterward may not be. The privilege attaches to the setting, and it does not travel with the speaker after they leave.

Audience matters for the common-interest privilege. Sharing information with people who have no legitimate stake in it falls outside subdivision (c). Broadcasting a reference beyond a prospective employer, or copying uninvolved third parties on an internal complaint, can strip the protection.

And courts examine whether the communication is actually connected to the proceeding or interest that justifies the privilege. A lis pendens that does not identify a real pending lawsuit, or statements in a proceeding designed to conceal insurance coverage, do not receive protection even though they occur in a litigation setting. The privileges reward participation in legal and civic processes; they do not reward using those processes as cover.

1
California Legislative Information. California Code Civil 47
2
Justia. Silberg v. Anderson (1990)
3
Justia. Lundquist v. Reusser (1994)
4
California Legislative Information. California Code of Civil Procedure 425.16