On October 10, 2023, Governor Gavin Newsom signed Assembly Bill (AB) No. 933.
On October 10, 2023, Governor Gavin Newsom signed into law Assembly Bill (AB) No. 933. The new law provides additional protection to individuals who are victims of sexual offenses and are sued under the state’s defamation law. AB 933 expands the California Civil Code’s definition of privileged communication in defamation actions to include communications made about an individual’s own experience of sexual assault, sexual harassment, harassment or discrimination at work, and cyber sexual bullying. AB 933 also allows prevailing defendants in such a defamation action to recover their attorneys’ fees and costs, treble damages they have suffered by being the defendant, and punitive damages. The law will take effect on January 1, 2024.
Quick Hits
- Effective January 1, 2024, defendants sued for making defamatory statements based on their experience(s) as victims of sexual assault and other sexual misconduct may state the privilege as a bar to liability.
- The privilege also extends to statements about one’s own experiences of discrimination in the workplace.
- These same individuals may recover attorneys’ fees and costs, treble damages, and punitive damages if they prevail when sued for defamation.
Privileged Communications
In California, defamation includes written and oral false and unprivileged statements of fact that tend to damage a person’s reputation. California Civil Code Section 47 designates certain types of publications and communications as “privileged” and protects those who make privileged statements from defamation lawsuits, even if the statements tend to damage the reputation of others.
As of January 1, 2019, Section 47 protects employers and their employees who are victims of sexual harassment from defamation claims. Section 47(c)(1) expands the definition of “privileged publication or broadcast” to include an employee’s sexual harassment complaint (without malice) to an employer based on credible evidence. Similarly, Section 47(c)(2) extends the privilege to communications between an employer and “interested persons” (without malice) regarding complaints of sexual harassment. This privilege includes an employer’s communication about whether it will not rehire a former employee because of its conclusion that the individual engaged in sexual harassment.
SB 933
AB 933 expands the definition of a privileged communication to include a communication made by an individual, without malice, about an incident of sexual assault, harassment, or discrimination.
Who qualifies as an “individual”?
The privilege only protects individuals who have “reasonable grounds to file a complaint of sexual assault, harassment, or discrimination.” In other words, the new law only protects the individual who actually experienced the underlying behavior (e.g., sexual harassment or sexual assault). The new law protects the individual even if the individual never files a complaint about sexual misconduct.
What is “communication”?
AB 933 defines “communication” broadly to include factual information relating to:
- “An act of sexual assault”;
- “An act of sexual harassment”;
- “An act of workplace harassment or discrimination, failure to prevent an act of workplace harassment or discrimination, aiding, abetting, inciting, coercing, or coercing an act of workplace harassment or discrimination, or an act of retaliation against a person for reporting or opposing harassment or discrimination in the workplace”;
- “An act of harassment or discrimination, or an act of retaliation against a person for reporting harassment or discrimination, by the owner of an accommodation”; or
- “An act of cyber sexual bullying,” as defined by the California Education Code
What relief will the ruling defendant have if he successfully asserts this new privilege?
In most defamation cases, defendants cannot recover attorneys’ fees if they prevail. Under AB 933, however, any prevailing defendant in a defamation action brought against the defendant for making a privileged communication under Section 47.1 is entitled to recover the fees and costs of attorneys, as well as treble damages and punitive damages.
For more information on this and other new laws in California, please join us for our upcoming webinar, “California Legislative Update: A Busy 2023 Brings Big Changes for Employers,” which will take place on Monday, October 30, 2023, from 11 a.m. to noon (PDT). Speakers Christopher W. Olmsted and Charles L. Thompson, IV, will discuss key takeaways from this and other recent California laws. Register here.
