Defamation Flashcards
What are the common law elements of defamation?
- Defendant’s unprivileged publication to a third party
- Publication of defamatory material
- Material is concerning to P
- D was at fault (at least negligent – could be reckless or intentional
- Most jurisdictions also require proving:
- Statement is false
- Actual damage
What constitutes a third party?
A party able to understand the statement or it is reasonably foreseeable someone would hear the statement
What constitutes a publication?
- Suggestive comments, words, pictures, memes, etc.
2. Action without words
When a communication is clear, who determines whether it is defamatory?
Community standards
When a communication is unclear, how is it determined if the statements are defamatory?
- Did P reasonably understand the communication was intended in a defamatory sense
- Did D intend it to be defamatory and P understood it as such
Does the defendant have to originate the defamatory statement?
No, but it must be published
What is libel?
Historically: written or printed words
Modern: physical form
*It creates a permanent record; deliberate and premeditated
What is slander?
Communication by spoken words, or gestures, or any form of communication that are transitory
What additional damages must be shown for slander?
Special or pecuniary
What is libel per se?
A statement that is defamatory on its face
Must special damages be shown for libel per se statements?
No
What is libel per quod?
A statement that is not defamatory on its face
Must special damages be shown for libel per quod statements?
Yes and must prove why the statement is defamatory
What is the self-publication doctrine?
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
What is an absolute defense to a defamatory statement?
The truth
What is the rule for a newspaper publication?
A publication must have been published with actual malice and reckless disregard for the truth
What is the rule for business defamation?
A defamatory statement that is an injurious falsehood or commercial disparagement
What is slander of title?
Defamation or false attack on real property
Under common law, who has the burden of showing the defense of the truth?
The burden is on the defendant to show the falsity
Under modern law, who has the burden of proof of showing the defenses of the truth?
The burden is on the Plaintiff to plead and prove the false statement
What are some absolute privileges?
- Judicial proceedings
- Legislature about a legislative act
- Publication required under law
What are the two qualified privileges?
- Made in good faith
2. Within the scope of duty
If the court determines the defendant had a good faith privilege, what must the plaintiff show?
The Plaintiff must show statement was not made in good faith
Can a private citizen claim the same standard as a newspaper publisher?
No
