Defamation

Question 1

What are the Common Law Elements of Defamation?

Answer 1

1. False Communication Published
2. Of and Concerning Another
3. Together with Extrinsic Facts
4. Harms the Reputation of that Other
5. With Special Damages except where Damages are Presumed.

Question 2

What is Libel and What is Slander?

Answer 2

Libel = Defamation in Written Form
Slander = Defamation in Oral Form

*Differences in elements as to each.

Question 3

What is Truth as a Defense?

Answer 3

The defamation claimant has the burden to prove falsity.

Question 4

What does the Publication Element of Defamation involve?

Answer 4

To satisfy the publication element of a defamation claim…

The false statement must reach and be understood by another. *Primary Publishers must reasonably anticipate republication and pay for resulting damage from defamatory statements.

Question 5

How does Defamation work with Internet Service Providers?

Answer 5

Internet Service Providers have statutory immunity from defamation liability WHEN THEY ARE NOT THE INFORMATION CONTENT PROVIDER.

Question 6

How does Defamation work with Self-Publication?

Answer 6

Some Courts recognize defamation claims in which circumstances compelled the claimant to self-publish the false statements.

Question 7

What is the Single-Publication Rule?

Answer 7

Most jurisdictions treat the original publication date as the date the cause of action arose, rather than treating subsequent printings as additional accrual dates.

Question 8

What does the Of and Concerning Element of Defamation involve?

Answer 8

Of and Concerning Element Requires:

The publication identify the claimant, although not necessarily by name if the circumstances make it sufficiently clear to whom the publication refers.

Question 9

What is Group Defamation?

Answer 9

A publication can defame an individual by referring to a group of which the individual was a member, so long as the reasonable person would identify the individual in that manner.

Question 10

When do you provide proof of special damages in defamation?

Answer 10

Slander claims ordinarily require proof of special damages except where the slander is as to loathsome disease, incompetence in one’s trade or profession, sex, or crimes of moral turpitude.

Question 11

Do Libel claims require proof of special damages in defamation?

Answer 11

Libel claims (writings) do not require proof of special damages.

Question 12

Define Special Damages in Defamation?

Answer 12

Special Damages are shown by proof of pecuniary loss (money or something that makes money) from 3rd persons believing and acting on the defamatory statement.

Question 13

Explain defamation and how it relates to the 1st Amendment?

Answer 13

The 1st Amendment requires public officials and public figures to prove actual malice in defamation claims.

Question 14

Define Constitutional Actual Malice?

Answer 14

Actual Malice = knowledge of or recklessness with regard to the falsity of the defamatory statement.

Question 15

Define Alternative Definitions of Actual Malice?

Answer 15

Actual Malice may also include =

1. high degree of awareness of falsity
2. subjective serious doubt as to truth
3. purposeful avoidance of truth
4. deliberate misquotes materially changing meaning

Question 16

Define what qualifies as a public official in defamation claims?

Answer 16

Any public employee whose qualifications the public would want to know, beyond the general interest in the qualifications of all public employees.

Question 17

Define what qualifies as a public figure in defamation claims?

Answer 17

UNIVERSAL PUBLIC FIGURE = prominence and influence

LIMITED PUBLIC FIGURE = media access and engaged in conduct from which one would expect public interest.

Question 18

Define elements of a defamation claim for a private figure on a public issues?

Answer 18

Private figure must show fault for liability AND actual malice for presumed and punitive damages.

Private Figure = Fault for Liability + Actual Malice

*Burden of Proof = Private Figure must retain the burden of proof to prove the statement false.

Question 19

Is a defamation claim for private figure on a private issues affected by the Constitutional Standards?

Answer 19

Private Figures + Private Issues = Unaffected by the Constitutional Standards

Question 20

What is judicial privilege?

Answer 20

Absolute judicial privilege protects lawyers, judges, and others from defamation claims based on relevant publications made in court proceedings.

Question 21

What is legislative privilege?

Answer 21

Absolute legislative privilege protects speakers in legislative proceedings against defamation claims based on relevant publications made in court proceedings.

Question 22

What is executive privilege?

Answer 22

Protects statements made within the scope of duties. Extends to all administrative branch officls at the Federal Level. In most states, only as to higher officials at the state level.

Question 23

What is the qualified interest privilege?

Answer 23

Allows one to protect one’s own interests, common interests, or the interests of others, without being subject to a defamation claim.

Question 24

What is a qualified reporting privilege?

Answer 24

There are also qualified comomon-law privileges of fair reporting and comment, to amke accurate summary of an official proceeding containing defamatory publications and to comment on them.

Question 25

What are some remedies for defamation claims?

Answer 25

1. Nominal Damages
2. Compensatory = economic/non-economic
3. Punitive
4. Some states first require demand for retraction.