(5) Torts: Defamation Flashcards
Definition:
Libel
Defamation by words written, printed or otherwise recorded in permanent form.
Common Law Damages Rule:
Libel
Damages are presumed there is no obligation to prove concrete harm.
Modern Trend Damages Rule
Libel
P needs to prove general damages which are damages that compensate the P for harm to their reputation.
Libel per Quod:
Libel
In certain jurisdictions if the defamatory statement requires extrinsic proof to show it is defamatory then P must prove either special damages or that the statement fits into one of the 4 categories of statements that satisfy the requirements of slander per se.
Definition:
Slander
Defamation by spoken word, gesture or any form other than libel.
Damages Rule:
Slander
To recover for Slander the P must prove (a) Special damages or (b) Slander per se.
Special Damages
Slander - Damages
Require P to prove a (1) 3rd party heard the defamatory comments; AND (2) acted adversely towards P. (usually an economic loss but could also include fiancé breaking off engagement or friend refusing to host them in home).
Slander per Se
Slander - Damages
The defamatory statement must fit within one of the following 4 categories (a) Having a loathsome disease; (b) Committing a crime of moral turpitude or that subjects P to imprisonment; (c) Disparaging statement regarding P’s lack of fitness to conduct business or profession; or (d) Lack of chastity for a woman.
Private Defamation
P must prove that D (1) Published (to a 3rd party who understands its defamatory nature) a; (2) Defamatory statement of fact; (3) Of and concerning P that; (4) Damaged P’s reputation (+ causation)
*(1) Published means D communicated it to someone other than P either intentionally or negligently
*(2) Language that harms a person’s reputation or deters others from associating. An opinion is actionable if the D implies there is a factual basis for that opinion.
*(3) A deceased person cannot be defamed
*(4) Subjected P to hatred, contempt, ridicule or $ injury
Republication
Private Defamation
A person who repeats a defamatory statement may be liable for defamation even though that person identifies the originator of the statement and expresses a lack of knowledge as to the truthfulness of the statement.
*Internet service providers are not publishers for the purpose of defamation law.
Public Defamation - Public Official
A government employee who has or appears to have substantial responsibility for or control over the conduct of government affairs. Candidates are also treated as public officials.
Public Defamation - Public Figure
P is a public figure if they have a position that influences society and are deemed public figures for all purposes OR P thrust themselves to the forefront of a particular public controversy in order to influence the resolution of the issue. In this situation the P is a public figure if the defamatory statement relates to their participation in the controversy otherwise they are a private figure.
Public Defamation - Private Person/Private Matter
No constitutional restrictions on defamation law.
Public Defamation - Private Person/Public Concern
If the statement involves a matter of public concern, then D is entitled to limited constitutional protections. P must prove D acted with fault either negligence or actual malice.
Rule & how to prove one of the elements
Public Defamation - Public Figure/Official
P must prove with clear and convincing evidence (1) Falsity (that the defamatory statement is false AND (2) Fault (that the D acted with actual malice – they either had knowledge that the statement was false or acted with reckless disregard as to the truth or falsity of the statement).
To establish reckless disregard for truthfulness the P must prove that the D entertained serious doubts about its truthfulness, mere failure to check facts is not sufficient.
Defenses to Defamation
- Consent
- Truth of Statement
- Absolute Privilege
- Qualified Privilege
Consent
Defenses
Consent by P, but D cannot extend beyond the scope of P’s consent.
Truth of Statement
Defenses
Truth is an absolute defense to defamation. A truthful statement is not defamatory. (Exam Tip: It could be IIED or Invasion of privacy)
Absolute Privilege
Defenses
Based on the identification of the speaker these statements are qualified (a) in the course of a judicial proceeding by any participants (i.e., judge, lawyer, witnesses – must be related to proceedings); (b) in the course of legislative proceedings (a legislator may say anything no limitation); (c) between husband and wife; (d) required publications by newspaper, TV, or radio by a political candidate.
Qualified Privilege
Defenses
Statements made under the following circumstances are subject to conditional privilege: (a) in the interest of the D, such as defending their reputation; (b) in the interest of the third party receiving the statement; or (c) affecting an important public interest.
How is the defense of Qualified Privilege lost?
Defense
Qualified privilege is lost if made with actual malice (modern trend – knowledge that the statement is false or acting with reckless disregard as to the truth or falsity of the statement) (common law malice – express malice or hatred, ill will, spite).
Who has the burden of proving Qualified privilege?
Defense
The burden is on the D to prove the privilege exists. Then the burden is on the P to prove the privilege has been abused.
