Nevada Legislature Clarifies Defamation Privilege for Open Meeting Law

AB 253 was recently passed, which makes several amendments to Nevada’s Open Meeting Law (NRS Chapter 241).  While the majority of the changes involve allowing public bodies to use remote technology systems (such as Zoom) to conduct their meetings, there was one important clarification to the law regarding absolute versus qualified privilege regarding false and defamatory statements made at meetings.

NRS 241.0353 previously provided that “A witness who is testifying before a public body is absolutely privileged to publish defamatory matter as part of the public meeting, except that it is unlawful to misrepresent any fact knowingly when testifying before a public body.”

The statute was contradictory, because it first provided for an absolute privilege to make defamatory statements during a public meeting, but then made it unlawful for someone to make false statements during the meeting.  “Defamation,” by its very nature, is a false and defamatory statement of fact made by someone about another to a third party. See Pope v. Motel 6, 121 Nev. 307, 315, 114 P.3d 277, 282 (2005).  So, the former version of the law essentially allowed in one breath what it prohibited in the next.  If the privilege was truly absolute, the law would have allowed for a witness to knowingly make false statements with no repercussions.

NRS 241.0353 has now been amended to provide a qualified privilege for defamatory statements: “Subject to a qualified privilege, a witness who is testifying before a public body may publish defamatory matter as part of the public meeting.  It is unlawful to misrepresent any fact knowingly when testifying before a public body.” NRS 241.0353 (May 31, 2021).

Under Nevada law, “[a] qualified or conditional privilege exists where a defamatory statement is made in good faith on any subject matter in which the person communicating has an interest, or in reference to which he has a right or a duty, if it is made to a person with a corresponding interest or duty.” Circus Circus Hotels, Inc. v. Witherspoon, 99 Nev. 56, 657 P.2d 101, 105 (1983).

As the legislative history for AB 253 indicates, the change “is intended to clarify the same actual effect of the law as it is today.”

If you have questions regarding Nevada’s Open Meeting Law or defamation and privileges, we invite you to contact an attorney at Lemons, Grundy & Eisenberg to see if we can assist you.