The Kentucky Supreme Court affirmed the dismissal of a defamation action based on statements made during a court-ordered arbitration. The “judicial statements privilege,” as it’s known in Kentucky, provides an “absolute privilege” for communications made pursuant to judicial proceedings, even if the statements would otherwise be defamatory. The privilege is more commonly referred to outside of Kentucky as the “litigation privilege” or “judicial privilege.”

A communication must fulfill two requirements to fall within the privilege’s protection: (1) the communication must have been made “preliminary to a proposed judicial proceeding, or in the institution of, or during the course and as part of a judicial proceeding”; and (2) the communication must be material, pertinent, and relevant to the judicial proceeding. The doctrine “rests upon public policy which looks to the free and unfettered administration of justice, though, as an incidental result, it may, in some instances, afford an immunity to the evil-disposed and malignant slanderer.”

The Kentucky Supreme Court was careful to point out that it did “not decide that all arbitrations come within the judicial statements privilege.” Rather, the court held solely that “statements made pursuant to court-ordered arbitrations are protected by the judicial statements privilege to the same extent as statements made in other court proceedings.”

New Albany Main Street Properties, LLC v. Stratton, No. 2022-SC-0254-DG (Ken. Aug. 24, 2023).