18) Defamation Flashcards
defamation: checklist
1) is it defamatory?
2) pleading issues
3) publication
4) libel or slander
5) common law privileges
6) 1A issues
defamation: def
published false defamatory material concerning P, that caused reputational damage
defamatory material: def
defamatory if:
1) subjects P to scorn/ridicule/contempt, OR
2) deters 3rd persons from dealing w her
either way must cause reputational harm
defamatory material: exceptions
1) hyperbole
2) pure opinion
neither is defamatory
defamatory material: exceptions: pure opinion: ojo!
if provably true or false it’s not an opinion, even if couched in opinion language, so this dn apply
defamatory material: in whose opinion?
must be defamatory in the eyes of a repuable group (not: you defamed me to the nazis)
pleading problems – issue
were the right facts alleged?
pleading problems – list
1) P not named in language
2) can’t defame a large group
3) st not defamatory on its face
PP: P not named: how to fix
allege that it is of or concerning her
still ok if it’s a small group of ppl (3 female torts professors) – all can sue
PP: large group: how to fix
can’t fix! result: claim fails
PP: st not defamatory on its face: how to fix
allege other facts (like the person whose wedding you’re announcing is already married)
publication: def
someone other than P read, saw, or heard the defamation
publication: elements
1) someone other than P read, saw, or heard the defamation AND
2) D intended that 3rd person would come in contact with it, OR was negligent that 3rd person would come into contact w it
republication rule
anyone who repeats the defamation is also a proper D, even if they attribute it
republication can also increase damages owed by orig D
type of defamation: kinds
1) libel
2) slander
type of defamation: result
affects what ko damages are available
libel: def
defamatory message in a relatively permanent form
libel: def: permanent form: exs
(written, sound recording, video, picture, sculpture, etc)
libel: damages rule
reputational harm is PRESUMED and damages do not have to be proved
slander: def
defamation is not preserved in permanent form (often spoken)
slander: damages rule
in order to recover, P must prove special damages (specific economic losses that flow from defamation)
OR
slander per se
slander per se: result
an exception to the nl slander damages rule –> spl damages not required, can proceed on claim of reputaitonal harm
slander per se: kinds
1) suggesting P not fit for their profession/role
2) imputing to P the commission of a crime involving moral turpitude or punishable by imprisonment/death
3) alleging P has current loathsome disease (incurable, persisted over time)
4) lack of chastity in a woman (maybe broader now)
common law privileges: kinds
1) truth
2) absolute privilege
3) qualified privilege
truth privilege: def now
P generally must prove falsity as part of case
maybe unless P is private P and matter is of private concern
truth privilege: old CL rule
falsity was presumed and truth was substantial defense
absolute privilege: result
D may not be held liable for the otherwise defamatory message as MOL!
absolute privileges: lists
1) coms btwn spouses
2) sts made on floor of legislature
3) sts btwn high ranking gvt officials
4) sts made in conduct of judicial proceedings
absolute privilege: limits
privilege ends if someone REPEATS the defamatory st in non-privileged situation
qualified privilege: result
gives greater leeway to speech, but D can lose it
qualified privilege: how D loses
acts out of malice, knows accusation is false, OR
is reckless about truth or falsity of st
OR
excessive publication
qualified privilege: situations
1) communication nec. to advance D’s own legit interests
2) matter of interest to the recipient or 3rd person
3) communicated re a matter of public interest, to one empowered to protect that interest
constitutional issues: qs to consider
1) status of P
2) subject matter of st
3) damages P seeks
4) status of D
status of D: kinds
1) media
2) nonmedia
status of P: kinds
1) public official
2) public figure
3) private figure
subject of st: kinds
1) public concern
2) private concern
special rule for public officials
P must prove by clear and convincing evidence (higher burden than preponderance) that actual malice
actual malice: def
recklessly disregarded truth or falsity (actually entertained serious doubts)
public figures: rule
same as public officials – must prove actual malice by C+C
public figure: kinds
1) all-purpose
2) limited
all-purpose public figure: def
household name
limited-purpose public figure: def
person who injects themselves into a particular controversy, hoping to affect the outcome
private figure + public concern: rule
usually negligence for PROVEN damages of reputational harm
presumed or punitive damages require actual malice
1A concerns started in
1964, so no old common law
public or private concern? consider
1) form
2) content
3) context
private figure + private concern: rule
dnn to prove actual malice
