Defamation

Question 1

What are the common law elements of defamation?

Answer 1

1. Defendant’s unprivileged publication to a third party
2. Publication of defamatory material
3. Material is concerning to P
4. D was at fault (at least negligent – could be reckless or intentional

• Most jurisdictions also require proving:
• Statement is false
• Actual damage

Question 2

What constitutes a third party?

Answer 2

A party able to understand the statement or it is reasonably foreseeable someone would hear the statement

Question 3

What constitutes a publication?

Answer 3

1. Suggestive comments, words, pictures, memes, etc.

2. Action without words

Question 4

When a communication is clear, who determines whether it is defamatory?

Answer 4

Community standards

Question 5

When a communication is unclear, how is it determined if the statements are defamatory?

Answer 5

1. Did P reasonably understand the communication was intended in a defamatory sense
2. Did D intend it to be defamatory and P understood it as such

Question 6

Does the defendant have to originate the defamatory statement?

Answer 6

No, but it must be published

Question 7

What is libel?

Answer 7

Historically: written or printed words
Modern: physical form
*It creates a permanent record; deliberate and premeditated

Question 8

What is slander?

Answer 8

Communication by spoken words, or gestures, or any form of communication that are transitory

Question 9

What additional damages must be shown for slander?

Answer 9

Special or pecuniary

Question 10

What is libel per se?

Answer 10

A statement that is defamatory on its face

Question 11

Must special damages be shown for libel per se statements?

Answer 11

No

Question 12

What is libel per quod?

Answer 12

A statement that is not defamatory on its face

Question 13

Must special damages be shown for libel per quod statements?

Answer 13

Yes and must prove why the statement is defamatory

Question 14

What is the self-publication doctrine?

Answer 14

When a plaintiff is compelled to publish defamatory statement to a third person if it was foreseeable to the defendant that the Plaintiff would be so compelled

Question 15

What is an absolute defense to a defamatory statement?

Answer 15

The truth

Question 16

What is the rule for a newspaper publication?

Answer 16

A publication must have been published with actual malice and reckless disregard for the truth

Question 17

What is the rule for business defamation?

Answer 17

A defamatory statement that is an injurious falsehood or commercial disparagement

Question 18

What is slander of title?

Answer 18

Defamation or false attack on real property

Question 19

Under common law, who has the burden of showing the defense of the truth?

Answer 19

The burden is on the defendant to show the falsity

Question 20

Under modern law, who has the burden of proof of showing the defenses of the truth?

Answer 20

The burden is on the Plaintiff to plead and prove the false statement

Question 21

What are some absolute privileges?

Answer 21

1. Judicial proceedings
2. Legislature about a legislative act
3. Publication required under law

Question 22

What are the two qualified privileges?

Answer 22

1. Made in good faith

2. Within the scope of duty

Question 23

If the court determines the defendant had a good faith privilege, what must the plaintiff show?

Answer 23

The Plaintiff must show statement was not made in good faith

Question 24

Can a private citizen claim the same standard as a newspaper publisher?

Answer 24

No