Chapter Thirteen

Question 1

Why is defamation a complex tort?

Answer 1

Some of its complexity stems from the courts’ struggle to balance freedom of expression against protection of the individual’s reputation.

Question 2

How did New York Times v. Sullivan change the face of defamation?

Answer 2

In limiting states’ power to establish their own defamation laws, New York Times v. Sullivan dramatically shifted the course of defamation law and, in the opinion of some critics, struck a balance that gives too much latitude to media defendants. The court created a federal rule that required public officials to prove that defamatory statements made relating to their official conduct were made with actual malice, i.e., with reckless disregard for the truth or with knowledge that the statement is false.

Question 3

Why is defamation seldom litigated?

Answer 3

Defamation is extremely difficult to prove and does not warrant litigation unless the damages are substantial.

Question 4

What is the difference between libel and slander?

Answer 4

Libel refers to written defamatory statements; slander refers to oral statements.

Question 5

What is the special-harm requirement?

Answer 5

To prove slander a plaintiff must establish that he or she suffered some kind of special harm, meaning harm of a pecuniary (monetary) nature

Question 6

In what four cases does special harm not have to be proved?

Answer 6

The four categories encompass statements alleging: (1) that the plaintiff engaged in criminal behavior; (2) that the plaintiff suffers from some type of venereal or otherwise loathsome and communicable disease; (3) that the plaintiff is unfit to conduct his or her business, trade, or profession; (4) that the plaintiff has engaged in sexual misconduct.

Question 7

What are presumed damages, and what is their relationship to special harm?

Answer 7

Presumed damages are those damages that ordinarily flow from defamation, thereby precluding the necessity of the plaintiff proving actual harm. Special harm has to be proved, presumed damages do not.

Question 8

What limitations has the U.S. Supreme Court put on presumed damages?

Answer 8

In cases involving matters of public concern, a plaintiff cannot be awarded presumed damages if the plaintiff is unable to prove “actual malice”

Question 9

What must a plaintiff prove to recover for defamation?

Answer 9

Defamation requires proof that the defendant’s statement was defamatory and that it was “published,” i.e., communicated to someone other than the plaintiff. Furthermore, the defendant must, at the very least, act negligently (although a greater degree of fault is required under certain circumstances).

Question 10

Must a plaintiff’s reputation actually be injured for the plaintiff to recover for defamation? Must the plaintiff’s reputation be tarnished in the eyes of the majority of the community?

Answer 10

To be considered defamatory, a statement must have a tendency to harm the reputation of the plaintiff (Restatement [Second] of Torts § 559). The plaintiff’s reputation need not actually be injured. A statement is sufficiently harmful if the plaintiff’s reputation would have been injured if those who heard the statement had believed it. Therefore, even if everyone who hears a defamatory statement believes it to be false, this statement can still be considered defamatory.

Question 11

How many people must reasonably understand that the defendant’s statement is referring to the plaintiff in order for defamation to be proved?

Answer 11

The plaintiff must prove that the statement was reasonably understood by at least one other person as referring to the plaintiff.

Question 12

Must the defendant refer to the plaintiff?

Answer 12

The defendant need not refer to the plaintiff, but someone must interpret the statement as pertaining to the plaintiff

Question 13

Must the defendant refer to the plaintiff by name?

Answer 13

The defendant need not refer to the plaintiff by name as long as it is reasonably understood to whom the defendant is referring.

Question 14

Can the plaintiff recover if the defendant’s statement is made in reference to a group to which the plaintiff belongs?

Answer 14

A plaintiff will often have a difficult time recovering if the defendant’s statement is made in reference to a group to which the plaintiff belongs. The statement probably will not be considered defamatory unless the group is a relatively small one.

Question 15

What must a judge determine before a jury can determine that a statement is defamatory?

Answer 15

A judge must first determine that the statement is subject to at least one reasonable interpretation that is defamatory.

Question 16

When must a plaintiff show in his or her pleadings the innuendo of the defendant’s statement?

Answer 16

In the complaint.

Question 17

Who has the burden of proving the truth or falsity of the defendant’s statement?

Answer 17

Under the common law the defendant had the burden of proving the truth of his or her statement. Supreme Court decisions, however, have limited a state’s ability to require the defendant to bear such a burden. Today the plaintiff bears the burden of proving that a statement was false if the statement involves a matter of “public interest” and the defendant is a media defendant

Question 18

Can the survivors of a deceased person sue for defamation based on statements made about the deceased?

Answer 18

No, only living persons can be defamed. Therefore, survivors of the deceased cannot sue for defamation because of statements made against the deceased.

Question 19

Can an expression of pure opinion be defamatory? No. a. What if the opinion implies factual matters?

Answer 19

A statement of opinion that implies factual matters can be considered defamatory

Question 20

What do the courts consider in deciding if a statement is an opinion?

Answer 20

The difference between fact and opinion is not always clear, but the courts look at a number of factors in making that distinction. The more precise a statement is, the more likely a court will consider it a fact. A statement that is almost impossible to verify is likely to be considered an opinion. The literary context in which the statement is made is also considered.

Question 21

What is a “publication”?

Answer 21

It is a term of art requiring that the statement be seen or heard by someone other than the plaintiff.

Question 22

What is required for a publication to occur?

Answer 22

A publication may be intentional or negligent. Merely overhearing a statement made by the defendant to the plaintiff does not constitute publication. The publication must also be understood by the person who hears it

Question 23

Does repetition of a defamatory statement constitute a publication?

Answer 23

Repetition of a defamatory statement is considered a publication.

Question 24

Why was defamation considered a strict liability tort under the common law?

Answer 24

Because defendants could be liable even if they had every reason to believe that a statement they made was true.

Question 25

How did New York Times v. Sullivan change that situation?

Answer 25

It held that if a plaintiff is a public official, the plaintiff can recover only by showing that the defendant acted with actual malice.

Question 26

What is the definition of actual malice, and when must it be proved?

Answer 26

Actual malice means having the knowledge that a statement is false, or acting with “reckless disregard” for the truth or falsity of the statement. It must be proved if the plaintiff is a public official or public figure.

Question 27

Who is considered a public figure, and why are public figures given less protection than private individuals?

Answer 27

A public figure is “one who has achieved pervasive fame or notoriety” or who “voluntarily injects himself or is drawn into a particular public controversy”

Question 28

What damages can a plaintiff recover in a defamation case?

Answer 28

A plaintiff who successfully proves defamation can recover for pecuniary as well as nonpecuniary losses, such as lost friendship, illness, and humiliation.

Question 29

Can punitive damages be awarded?

Answer 29

Punitive damages may be awarded in matters pertaining to issues of merely private concern when only negligence is shown

Question 30

Can presumed damages be awarded?

Answer 30

U.S. Supreme Court decisions cut back on allowing presumed damages by requiring the plaintiff to prove that the defendant acted at least with reckless disregard of the truth if the plaintiff is to recover presumed damages.

Question 31

What are retraction statutes, and how do they operate?

Answer 31

These statutes essentially bar a plaintiff from recovery if a defendant retracts a defamatory statement within a certain time period.

Question 32

What is the difference between an absolute and qualified privilege?

Answer 32

An absolute privilege applies regardless of the defendant’s motives. A qualified privilege applies only when the defendant acts on the basis of certain well-defined purposes.

Question 33

Who enjoys an absolute privilege?

Answer 33

Judges, lawyers, parties, and witnesses enjoy an absolute privilege for the statements they make during judicial proceedings, regardless of the motives for their statements.

Question 34

Under what circumstances is a defendant protected by a qualified privilege?

Answer 34

Reports pertaining to public proceedings, such as court cases and legislative hearings, enjoy a qualified privilege of immunity.

Question 35

How can a qualified privilege be lost?

Answer 35

A qualified privilege can be lost if it is abused.

Question 36

How was the tort of invasion of privacy created?

Answer 36

Samuel Warren and his then-law partner, Lewis Brandeis (later a justice on the U.S. Supreme Court), fueled by their perception that individuals needed protection from what they viewed as an increasingly invasive press, authored a Harvard Law Review article proposing the creation of a new tort.

Question 37

What four torts constitute invasion of privacy?

Answer 37

Appropriation, unreasonable intrusion, public disclosure of private acts, and false light.

Question 38

appropriation

Answer 38

If the value of a plaintiff’s name or picture is used by a defendant for a defendant’s own financial gain, the plaintiff can sue for appropriation. For example, the unauthorized use of an actress’s photograph for the purposes of advertising could give rise to a cause of action for appropriation

Question 39

unreasonable intrusion

Answer 39

A defendant who intentionally intrudes upon the seclusion of another is liable for invasion of privacy if his or her intrusion would be considered “highly offensive to a reasonable person”

Question 40

public disclosure of private facts

Answer 40

Publicizing the details of the plaintiff’s private life may also constitute an invasion of privacy. The matter publicized must be of the type that would be “highly offensive to a reasonable person” and must “not be of legitimate concern to the public’’

Question 41

false light

Answer 41

A plaintiff put before the public eye in a false light that would be highly offensive to a reasonable person can also sue for invasion of privacy

Question 42

What is injurious falsehood?

Answer 42

Injurious falsehood protects plaintiffs against false statements made against their business, product, or property rights.

Question 43

What is the difference between trade libel and slander of title?

Answer 43

If the plaintiff’s goods or business are falsely disparaged, the tort committed is typically referred to as trade libel, but if the disparagement refers to property rights of the plaintiff, the tort is usually referred to as slander of title.

Question 44

How does trade libel differ from defamation?

Answer 44

Trade libel differs from defamation in that the false statement need not ridicule or disgrace the plaintiff. As with defamation, however, the plaintiff must show the statement was published and that the plaintiff suffered some kind of pecuniary harm.