that so long as the communication is made bona fide on a matter in which the reporting person has an interest or duty, and is made only to another who has a corresponding interest or duty, the communication is "privileged", even though incorrect and defamatory, and cannot be sued on.
At common law, proof of malice in the making of a defamatory communication was an essential element of the claim, but malice was inferred in law if it were shown that the communication were false and defamatory.
However, in cases where "privilege" of this kind was shown no such inference in law arose, and it was necessary for the plaintiff, as part of his case, to prove "actual malice" or face dismissal or directed verdict.
Without exploring the subject in great detail, see decisions such as Rothholz v. Dunkle, 53 N.J.L. 438, at 440, 22 A. 193 (E. & A., 1891); King v. Patterson, 49 N.J.L. 417, 9 A. 705 (E. & A., 1887); Finkelstein v. Geismar, 91 N.J.L. 46, 106 A. 209 (Sup.1917), aff'd, 92 N.J.L. 251, 106 A. 210 (E. & A., 1918), which discuss the major English cases and leading cases from other jurisdictions.
A more recent ruling is Jorgensen v. Pennsylvania R. Co., 25 N.J. 541, at 562-569, 138 A.2d 24 (1958).
While the cases use the word "privilege", it is not in the same sense the word is used in connection with evidence law; rather, it is a form of justification in the sense that it is a privilege to make the communication under the conditions stated. And the privilege is "qualified" by the conditions of the rule. In modern terms, it might be called a "qualified immunity" from liability.
In some instances, of course, defamatory statements are absolutely privileged, see Toft v. Ketchum, 18 N.J. 280, 113 A.2d 671 (1955), affirmed on reargument, 18 N.J. 611, 114 A.2d 863 (1955).
In any event, Congress has recognized both the need and importance of credit information and the existence of credit reporting as a means to fill that need, 15 U.S.C. § 1681(a), though the expression is narrowed to remain within the confines of federal power.
What the Act does is to specify some restrictions on the reporting of certain kinds of information for that purpose, 15 U.S.C. § 1681c, regulate the preparation and provide means for correction of "investigative" reports, § 1681d, require reporting agencies to establish internal controls to achieve compliance, 15 U.S.C. § 1681e, limit the circumstances under which a consumer report may be furnished, 15 U.S.C. § 1681b, f, g, and h, among other things, and create federal civil causes of action in certain circumstances, 15 U.S.C. § 1681n and o, as well as denounce certain conduct as crimes, 15 U.S.C. § 1681q and r.
A reporting agency is allowed to furnish a consumer report "in response to the order of a court having jurisdiction to issue such an order," 15 U.S.C. § 1681b(1). It is also, and independently of that provision, allowed to furnish a governmental agency (presumably at any level) with name, address, former addresses, present and former places of employment, 15 U.S.C. § 1681f.
The reporting agency here, after arranging to postpone the date for appearance to April 29th, filed a notice of motion to quash the subpoena, along with supporting papers, on April 24th, returnable on April 25th, and the matter was heard.
The issue evidently arises because the Federal Trade Commission (FTC), although it seems not to have adopted any rule or regulation on the point, see 16 C.F.R. § 1.71 to § 1.73; § 600.1 to § 600.6, has issued a number of letters in the nature of staff opinions not binding on FTC, reaching the conclusion that a "grand jury subpoena" is not a "court order" within the meaning of 15 U.S.C. § 1681b(1). District courts elsewhere have evidently divided on the point.
The Court of Appeals for the Ninth Circuit, on an appeal from bank fraud and mail fraud convictions, has said:
"Defendants' argument that a grand jury subpoena is not a "court order' is specious." U. S. v. Kostoff, 585 F.2d 378, at 380 (CA9, 1978).