Defamation Flashcards
Defamation Prima facie case
(1) Defamatory Language of or concerning the plaintiff, (2) Publication to a third person, (3) Damage to the reputaiton
Public Figure additional elements
(4) Falsity (plaintiff must prove this) and (5) Fault (varies depending on public or private figure)
Defamatory Language
Language that tends to adversely affect one’s reputation.
Type of Language
(1) Defamatory statement on its face,
(2) Inducement and innuendo,
(3) Statements of Opinion,
* *NOTE can be direct remarks, pictures, satire, drama, etc.**
of or concerning plaintiff
Reasonable reader, listener, or viewer must understand that the defamatory statement referred to the plaintiff.
Who may be defamed?
(1) an individual or (2) a corporation Note, a dead person may not be defamed
What is colloquium?
When plaintiff pleads additional facts to show that a statement with no clear reference did infact refer to the plaintiff.
Group Defamation
- All members of a small group - each member has a COA, 2. All members of a large group - no member has a COA, 3. Some members of a small group - identifiable members have a coa.
Publication definition
When there is communication to a third party who understood it.
Publication requirement
1) only intent to publish, 2) each repetition of stmt is separate publication, 3) Single publiction rule
Who may be liable?
1) Primary publisher
2) Republisher - liable same as primary
3) Secondary publisher (disseminating materials) - only liable if they know or should know
Damages
2 Categories: (1) General or Presumed – need not be proved by P, and (2) Special - P must prove pecuniary loss
Libel definition & considerations
Lible is a defamatory statement recorded in writting or some other permanent form. NOTE: In most jurisdictions general damages are presumed by law, some jurisdictions distinguish lible per se from lible per quod
Slander definition and considerations
Slander is spoken defamation. Slander is less permanent and less physical in form - TV and Radio broadcasts are usually slander. Special damages usually required
Slander per se
Four categories where injury to reputation is presumed: (1) Business or profession (2) Loathsome disease (3) crime involving moral turpitude, and (4) unchastity of a woman
Fault (6th element) detail
Imposed as required element for public figures and matters of public concern.
Character of Defendant
- Public Figure - Malice required, 2. Private figure only implicates constitutional issues when matter is of public concern.
Private figure - public concern
2 limitations - (1) prohibits liability w/o fault and (2) restricts recovery of presumed or punitive damages. #1 means P ust show D permitted false statement through negligence NOT malice and #2 means damages limited to actual injury - may get punitive if malice can be shown
What is a matter of public concern?
Courts look to (1) content, form and context of the publication.
Defenses to Defamition
(1) Consent, (2) Truth, (3) Absolute privilege, (4) qualified privilege
3 Absolute privilege
(1) judicial proceedings - reasonable relationship, (2) legislative proceedings - no req. for reasonable relationship (3) Executive proceedings - reasonable relationship, (4) compelled broadcast or publication and (5) communication between spouses
4 Qualified privilege
(1) reports of public proceedings -IF accurate (2) publication to one acting in public interest or fair comment and criticism of general public interest, (3) interest of publisher (4) interest of recipient, (5) common interest of publisher and recipient
Qualified privilege can be lost …
(1) abuse, (2) not w/in scope, (3) malice NOTE: Defendant bears burden of proving privilege exists.
Mitigating factors
(1) no actual malice, (2) retraction and (3) anger provoked by P
