15. Defamation (1A) Flashcards
What is required for a prima facie case for defamation in common law?
Common law
1) Defamatory language
- NO falsity need to proven
2) Of/Concerning P
3) Publication
4) Damages P’s reputation
5) Falsity
Constitutional law
6) Matter of public concern
7) Fault re truth of statement
What are examples of defamatory language?
(Adversely affecting one’s reputation, honesty, integrity, etc)
Inducement/Innuendo
- Defamatory ‘on its face’
- Defamatory apparent by adding extrinsic facts during court
Direct/Indirect remarks
- Pictures/Satire/Drama
Statement of opinion
1) Based on specific facts
2) Express allegation of those facts would be defamatory
What are examples of defamatory statements of/concerning Plaintiff?
(Reasonable reader/listener would understand as referred to P)
Colloquium
- Statement NOT clearly defamatory towards P
- P can introduce extrinsic facts to prove it was defamatory
Groups
- Small groups (Reference to ALL or some (based on reasonable reader’s view))
- NOT large groups*
What is required for publication?
1) Intent to publish statement
- NO intent to defame required
2) To TPs
- TP standing in front of D at the time of making statement to P
3) TP understood as defamatory
4) By publisher
- Single publication (various copies)
- Separate publications (different publishers)
- Primary publisher/Republisher (NOT internet)
- Secondary publisher (knew/should have known of defamatory content) (selling papers/tapes)
What is required for damage to P’s reputation?
1) Plaintiff must be;
- Alive (NOT dead)
- Business
2) Either;
- Libel (written, radio/TV programmes, oral repetition of libel, written repetition of slander) (General damages)
- Slander per se (business conduct/loathsome disease/mortal turpitude crime/chastity) (General damages)
- Slander NOT per se (Special damages)
What are the types of damages in common law defamation?
General damages
- General injury to P’s reputation
- Presumed by law (NO need to proven)
Special damages
- Pecuniary loss (loss of job/business, NOT humiliation/loss of friends)
- NOT presumed by law (Must prove)
What factors determine a matter of public concern?
Content
Form
Context of publication
What happens if the statement is not false?
1) Private Plaintiff
2) Sue for either;
- IIED
- Invasion of right to privacy
What is required for fault over determining truth of statement?
Public plaintiff
- Achieves pervasive fame/voluntarily assumes public controversial role
- Malice (Knowledge/Recklessness) (NOT intent) (subjective) (New York Times v Sullivan)
Private plaintiff
- Negligence
NOT strict liability (NO fault)
What is required to prove damages in constitutional law defamation under First Amendment?
Actual injury (NOT presumed) (negligence)
- Reputation damage
- Humiliation
- Mental anguish/suffering
State presumed/Punitive damages (NOT presumed) (malice)
- Only public matter
What defences are available?
P’s death
Consent
1) Valid consent (capacity)
- Express (NO known mistake by D/NO fraudulent inducement/NO immediate duress)
- Implied (Custom/Law)
2) Not exceed scope of consent
- Not to do something substantially different
Truth
- (Otherwise sue for IIED/Invasion of privacy)
Absolute privilege
- Broadcasts (compelled)
- Judicial proceedings
- Legislative proceedings
- Executive proceedings (regarding executive matters)
- Spousal communications
Qualified privilege (Burden of proof: Defendant)
- Official proceeding reports (judicial/legislative/executive)
- Social purpose/Statements in Publisher or Recipient’s interests (job recommendations)
- UNLESS not within scope of privilege => Privilege lost
- UNLESS malice => Privilege lost
What is the difference in damages between common law and constitutional law defamation?
Common law
- General damages presumed
- Special damages NOT presumed (slander NOT per se)
Constitutional law
- General damages NOT presumed (negligence)
What are not examples of defamatory language?
Exaggerations
- NOT reasonably believable
Pure opinions
- NOT proveable as true/false
- UNLESS speaker implies knowledge of facts
