defamation Flashcards
general defamatory statement must
o be one that can be believed as truthful and reputation harming.
o Hyperbole and opinion are not defamatory.
libel
Defamatory message embodied in any relative permanent form. Reputational harm is presumed, but the damages have to be proven.
slander
Defamation in spoken rather than written in form.
To recover, P must prove special damages (specific economic losses that flow from the slander). P can also receive reputational damages.
slander per se reasons
- job-related statements that are incompatible
- moral turpitude crime or crime with large penalties
- loathsome disease
- imputing lack of chastity on women
common law privileges exception to truth
P is a private, not public figure, and the matter is a private concern.
absolute privileges
● Communications between spouses.
● Statements made on the floor of the legislature.
● Communications between high ranking executive officials.
● Statements made in conduct of judicial proceedings.
Qualified/Conditional Privilege
● Comments are made in a communication that appears reasonably necessary to protect or advance the D’s own legitimate interests;
● Comments were communicated on a matter of interest to the recipient of the communication or a third person;
● Comments were communicated concerning a matter of public interest to one empowered to protect that interest.
lose privilege when
● D has a bad intent, acts out of malice, or is reckless as to the statement’s truth/falsity.
● D does not believe the truth of the defamatory communication.
four ?s for constitutional defamation
▪ What is the status of P (public official, public figure, private figure)?
▪ What is the subject matter of the statement (public or private concern)?
▪ What damages does P seek?
▪ What is the status of D?
public official standard
If defamation is related to capacity as a public official, P must prove actual malice by clear and convincing evidence. (i.e. D knew it was false or recklessly disregarded the truth or falsity.)
Private Figure and public concern
If the subject matter of the defamation is a matter of public concern, D must be shown to have exhibited some degree of fault higher than strict liability, which presumably means negligence.
private figure and public concern
P does not have to prove actual malice to get presumed or punitive damages (note - not settled; not tested)
defense to defamation
If the speaker believes the statement to be true and is communicating a matter of interest, he has qualified immunity from defamation
defamation when
published a statement with knowledge of its falsity or reckless disregard for its truth or falsity
small group defamation effect on unnamed indvs.
If the group that is the subject of a defendant’s defamatory message is small enough, each member of the group is generally regarded as sufficiently identified to sue for defamation.
