Can a libel action be sustained where the same words, if used other than on a lawful occasion, would be libelous?

There are many examples in the books of communications held to be privileged, where the same words, if used other than on a lawful occasion, would be libelous, but which, by reason of the occasion when they were published or spoken, will not sustain an action, although proved to be untrue, unless proved to have been spoken maliciously. The cases of charges made in giving the character of a servant, or in answering an authorized inquiry concerning the solvency of a tradesman, or where the communication was confidential between parties having a common interest in the subject to which it relates, are illustrations. BRONSON, J., Washburn v. Cooke, 3 Denio, 112. In these and like cases the privilege is not absolute, but conditional, that is to say, the occasion being lawful the communication is prima facie privileged, and rebuts the inference of malice which would otherwise arise, and imposes on the plaintiff who prosecutes an action of slander or libel the burden of proving that the defendant was moved by actual malicious intent in making the communication, and, failing in that, he fails in the action. But, as has been said, if the occasion is not a privileged one, the same words may give a right of action, as where an employer, being under no duty, legal, moral, or social, to give information, makes defamatory statements affecting the servant's character, or where a person, under like circumstances, imputes insolvency to a trader. In such cases the law presumes both malice and the falsity of the words, and the defendant is liable for damages unless he can prove that the words were true.