dissenting.
The Court acknowledges that plaintiff, seeking to recover for her personal injuries in an action against two motorists, “was subjected to repeated indignities by private investigators acting on behalf of an insurance company and a law firm representing one of the motorists.” Ante at 211, 661 A.2d at 286. The “indignities” she endured were slanderous remarks made about her — that she was an adulteress, a faker, a fraud, and a liar. The Court concludes that there is nothing plaintiff can do about those'slanderous remarks. The Court holds that the policy of immunity in the law of defamation that grants an absolute privilege to statements made by participants in judicial proceedings extends to *223statements made by private investigators employed by the parties or then- representatives. Ante at 211, 661 A.2d at 286.
I strongly disagree with the Court’s ruling. Substantially for the reasons expressed in the partial dissent of Judge Stein in the Appellate Division, I would limit investigators to a qualified privilege with respect to defamatory statements made in the course of an investigation that is not a direct part of a judicial proceeding.
I
The law of defamation “embodies the important public policy that individuals and business entities should generally be free to enjoy their reputations unimpaired by false and defamatory attacks.” Rainier’s Dairies v. Raritan Valley Farms, Inc., 19 N.J. 552, 557, 117 A.2d 889 (1955). In certain situations, however, “a paramount public interest [dictates] that persons be permitted to speak or write freely without being restrained by the possibility of an ensuing defamation action.” Id. at 557-58, 117 A.2d 889; see Fees v. Trow, 105 N.J. 330, 336, 521 A.2d 824 (1987) (noting that “[t]he law of privilege is designed to protect speech in those narrowly defined instances in which the public interest in unrestrained communication outweighs the right of redress.”)
Public policy encourages free and unconstrained communication in the administration of justice and, to that end, justifies an absolute privilege for those who participate or are involved in judicial or gwsi-judicial proceedings. Devlin v. Greiner, 147 N.J.Super. 446, 455, 371 A.2d 380 (Law Div.1977). “The most noteworthy illustration of the absolute privilege or immunity is that afforded in judicial proceedings where judges, attorneys, witnesses, parties and jurors are fully protected against defamation actions based on utterances made in the course of the judicial proceedings and having some relation thereto.” Rainier’s, supra, 19 N.J. at 558, 117 A.2d 889.
The Court here invokes the four-part test espoused in Silberg v. Anderson, 50 Cal.3d 205, 266 Cal.Rptr. 638, 786 P.2d 365 (1990), to justify the application of the absolute privilege. Ante at 216, 661 *224A.2d at 289. One prong of that test requires that the communication in question be made by “litigants or other participants authorized by law.” Id. 786 P.2d at 369. The majority concludes under that test the investigators were “participants” in the original tort litigation and that their statements were equivalent to statements made in the course of the judicial proceeding by persons directly involved in that proceeding. On that basis, the Court finds that the investigators are therefore entitled to the immunity of the absolute privilege.
Investigations that are related to litigation are not necessarily a constituent part of a judicial proceeding as such, .nor do such investigations necessarily become “judieialized” by referring to them as “informal discovery.” Investigators are neither parties, jurors, judges, attorneys, nor are they necessarily- witnesses. With respect to witnesses, the importance of open communications is clearly identified by the majority. • The Court observes that
A witness’ apprehension of subsequent damages liability might induce two forms of self-censorship. First, witnesses might be reluctant to come .forward to testify. And once a witness is on the stand, his testimony might be distorted by the fear of subsequent liability.
[Ante at 216, 661 A.2d at 289 (citing Briscoe v. LaHue, 460 U.S. 325, 333, 103 S.Ct 1108, 1114, 75 L.Ed.2d 96, 106 (1983) (citations omitted).]
How likely is it that a hired professional investigator will “be reluctant to come forward to testify”? Or that he will distort his testimony because he is afraid of being sued? Even though an investigator’s statements may be afforded an absolute privilege if the investigator becomes a party witness, see Devlin, supra, 147 N.J.Super. at 458, 371 A.2d 380, that hardly justifies protecting an investigator’s statements made in the course of unstructured, uncontrolled, and unsupervised “informal discovery,” when the investigator is not a witness.
In Devlin, a husband hired an investigator to confirm suspicions that his wife was having an affair. The investigator’s report contained statements substantiating an adulterous relátionship. During the subsequent divorce proceeding, contents of the investigator’s report were repeated by the investigator in the form of an *225affidavit. After divorce was granted, the wife and her alleged paramour filed a complaint against the investigator raising numerous causes of action stemming from alleged fabrications in his report and subsequent affidavit. The investigator argued that he was entitled to immunity based on an absolute privilege because the alleged fabrications were made in the course of a judicial proceeding.
The Devlin court declined to grant summary judgment in favor of the investigator based on absolute privilege,- finding that there was a question of fact as to whether the underlying report was prepared prior to the divorce litigation. Id. at 457-58, 371 A.2d 380. In other words, the court determined that the alleged fabrications may not have occurred in the' course of a judicial proceeding, but rather in an extra-judicial setting and therefore, the absolute privilege may not attach.
Drawing support from case law, the Court concludes that an investigator hired by an attorney is entitled to an absolute privilege because he or she is a representative of that attorney. Ante at 220, 661 A.2d at 291. In support of that position the Court relies on Middlesex Concrete Products and Excavating Corporation, 68 N.J.Super. 85, 172 A.2d 22 (App.Div.1961). In that case, Middlesex contracted with the Borough of Carteret (“the Borough”) to construct a sewage treatment facility. Due to allegations made by the Carteret Industrial Association, Middlesex became involved in litigation with the Borough. Philip B. Streander was retained by the Borough to perform an engineering investigation of the work performed by Middlesex. The results of Streander’s investigation were extremely favorable to the Borough. During trial, Streander testified as an expert witness. Finding in favor of Middlesex, the trial court indicated that “Streander and his employees had knowingly used improper methods of computation ... in an attempt to make out a case of fraud [against Middlesex].” Id. at 89, 172 A.2d 22.
In a subsequent action, Middlesex filed suit against the Carteret Industrial Association and Streander for tortious interference with *226its contract with the Borough. The basis of Middlesex’s action against Streander was his fraudulent engineering investigation, report, and testimony. Streander moved for summary judgment on the basis of an absolute privilege. The Appellate Division affirmed the trial court’s grant of summary judgment holding that “Streander’s investigation, report, consultations, and testimony as an expert witness were made and given in the course of a judicial proceeding, and all had relation thereto.” Id. at 92, 172 A.2d 22 (emphasis added).
The circumstances of this case are certainly distinguishable. As acknowledged by the Middlesex court, that case involves a course of communication between an expert witness and an attorney during the judicial proceeding, not statements made by investigators to third parties.
The Court further attempts to draw support from Petty v. General Accident Fire & Life Assurance Corporation, 365 F.2d 419 (3rd Cir.1966). In that case, a workman was injured during the construction of a building. He filed suit against numerous defendants including architects Petty and Croft. The worker claimed that the negligence of Petty and Croft in planning and constructing the building had caused him serious physical injury. Petty and Croft were insured against any liability arising from negligence in their professional work. The insurance policy provided the insurers with the obligation to defend any such suit and the right to make whatever settlement they might deem expedient.
In accordance with the policy, the insurers hired counsel to defend the action against Croft and Petty. The insurers, without the knowledge of Petty, directed counsel to settle the case against all defendants for $123,000 to which Petty and Croft would contribute $12,583.33. In the subsequent action for libel against the insurers, Petty contended that the terms of the settlement falsely “imputed ... to the plaintiff negligence and malpractice by him in his profession as an architect.” Id. at 421. The insurers claimed immunity based on an absolute privilege. Petty responded that *227the insurers had no such right because they were not parties to the initial litigation.
Technically, the insurers were not parties to the original litigation against Petty and Croft. However, recognizing that the insurers retained the counsel used by Petty, the court stated that “immunity which attends judicial proceedings protects both counsel and other representatives who are employed to assist a party in the course of litigation.” Ibid, (noting Middlesex, supra.). That court further noted:
The authority and interest of the insurance companies here and the status of counsel as Petty’s attorney make this about as strong a case as could be for protecting their conduct as interested and authorized participants in the settlement to the same extent that a formal party would be protected.
[Id. at 421-22.]
It cannot be overemphasized that the court extended the absolute privilege to the insurers because they were “interested and authorized participants” engaged in a distinct part of the judicial proceeding, the settlement of the claims against Petty and Croft. Ante at 216, 661 A.2d at 289.
In Leavitt v. Bickerton, 855 F.Supp. 455 (D.Mass.1994), considering factual circumstances somewhat similar to those in this case, the court chose to extend an absolute privilege to the investigator. However, neither that court nor this Court, bothers to explain why a qualified privilege would not provide reasonable protection for such investigatory statements. A qualified privilege, in my view, is sufficient to protect investigators and the attorneys who hire them without impinging, on an investigator’s ability to conduct a fruitful investigation.
The Court also indicates that an absolute privilege should extend to investigators by virtue of their agency relationship with an attorney. Ante at 221, 661 A.2d at 291-92. Because attorneys cannot conduct all aspects of litigation themselves, they often hire investigators or other agents to .prepare for litigation. That consideration may serve to justify extending some type of protection to agents of attorneys for statements made in the course of a judicial or quasi-judicial proceeding, while under the control, di*228rection or supervision of an attorney. See Youmans v. Smith, supra, 153 N.Y. 214, 47 N.E. 265, 267 (1897) (acknowledging that “the privilege that protected [the attorney] also protected his agents and employees in whatever they did at his request that he could have lawfully done himself.”). However, the fact that investigators may aid attorneys in preparing a case does not justify extending an unqualified and absolute privilege to investigators for statements made in the course of investigations.
By denying an absolute privilege to investigators who'are not directly involved in a judicial proceeding, it is possible that the attorney who hired the investigators could, based on an agency relationship, ultimately bear responsibility for defamatory remarks made by an investigator. That possibility of vicarious liability itself may be fairly remote. The investigator would be protected by a qualified privilege. Even a qualified privilege is difficult to overcome in order to establish defamation liability. In any event, vicarious liability based on a qualified privilege may be just if the attorney could have prevented or discouraged the defamatory conduct by his or her agents. Rather than inhibiting or discouraging informal, extrajudicial discovery, the possibility of vicarious liability through a qualified privilege would promote more effective direction, control and supervision on the part of the attorney in the conduct of such informal discovery. Further, the more limited .protection of the qualified privilege could itself constitute an incentive that investigators will act responsibly and fairly.
The policies of open communications and the search for the truth may favor affording an investigator an absolute privilege if and when that investigator becomes a witness to events or matters that are part of a judicial proceeding. See Devlin, supra; Middlesex, supra. In that context, the investigator, as any witness, should be encouraged to speak openly and fully without fear of reprisal. However, an investigation that may be related to a judicial proceeding, but is not an actual part of that proceeding, does not sufficiently implicate the strong need for open communi*229cations that attends the proceeding itself. To the contrary, without any constraints and absent fear of repercussion, investigators, as ruefully observed by Judge Stein, are encouraged to “go forth into the community like marauders, defaming others with impunity, making statements that they know are false or are made with reckless disregard of the truth” in an attempt to uncover witnesses and testimony favorable to their client’s position.
Because the absolute privilege protects even malicious statements, courts have provided it to only a few categories of statements and “will not lightly extend the grant of absolute privilege to new situations unless the policy upon which the privilege is based is found to exist.” Devlin, supra, 147 N.J.Super. at 456, 371 A.2d 380. As is noted, affording investigators with an absolute privilege does not necessarily promote open communications and the search for truth, but, as in this case, encourages insinuation, innuendo and insult.
Bestowing an unqualified and absolute privilege on investigators removes any assurance that they will try to avoid tactics that are injurious and harmful. In contrast, attorneys have incentives other than the threat of a defamation action to discourage them from making malicious or reckless false statements about others. For example, the Rules of Professional Conduct interdict malicious and/or defamatory statements by attorneys. See, e.g., RPC 3.4(b) (stating that an attorney shall not “falsify evidence, counsel or assist a witness to testify falsely.”); RPC 4.1 (a)(1) (prohibiting attorney from knowingly making false statements of material fact or law to third persons); RPC 8.4(c) (stating that an attorney may not “engage in conduct involving dishonesty, fraud, deceit or misrepresentation.”). Investigators are not subject to similar strictures which encourage them not to defame third parties. As recognized by the majority, “the absolute privilege ‘does not extend to statements made in situations for which there are no safeguards against abuse.’ ” Ante at 221, 661 A.2d at 291 (quoting Demopolis v. Peoples Nat'l Bank, 59 Wash.App. 105, 796 P.2d 426, 430 (1990)); see Rainier’s, supra, 19 N.J. at 562, 117 A.2d 889. *230Because informal discovery undertaken by investigators is not subject to judicial supervision, and is therefore subject to abuse, the absolute privilege should not be extended to investigators absent adequate safeguards. See Schulman v. Anderson Russell Kill & Olick, 117 Misc.2d 162, 458 N.Y.S.2d 448, 453 (Sup.Ct.1982) (acknowledging that absolute privilege does not protect statements rendered during informal discovery because of “the grave potential for abuse and bad faith in such informal quests for information.”).
.II
In my view, the extension of an absolute privilege to investigators, endorsed by the majority, goes'much too far. As exemplified by this case, the grant of immunity coupled with the absence of any ethical or legal constraints becomes a license to defame. The absolute privilege, reserved for participants in judicial proceedings, in the hands of hired investigators, does not genuinely or reasonably encourage or promote the truth — the only purpose intended to be achieved by applying the absolute privilege to judicial and quasi-judicial proceedings and those directly and substantially involved in such proceedings.
For affirmance — Justices POLLOCK, O’HERN, GARIBALDI and Judge MICHELS — 4.
For reversal — Chief Justice WILENTZ, Justices HANDLER and STEIN — 3.