Defamation Flashcards
Slander vs. Libel
Slander- spoken defamation (must show economic harm, except if slander per se)
Libel- written form of defamation (no need to show economic harm)
Defamatory Statement
A statement is defamatory if it tends to so harm the reputation another as to lower them in the expectation of the community or deter a third party from associating with him
MUST BE CONSIDERED IN CONTEXT
Proof of harm?
No proof of actual harm to reputation is necessary
Of and Concerning
The reading public acquainted with the parties and the subject would recognize the plaintiff as a person to whom the statement refers (those who know the plaintiff)
Even if the reader is REASONABLY MISTAKEN as to who the statement refers to, the statement can still be defamatory
Small Group Defamation
Each member of a small group may maintain an action for INDIVIDUAL injury from a defamatory comment about the group (If the group is so small that it can reasonably be assumed that the statement implicated each individual member)
Recoverable Damages for Defamation
- Damage to reputation
- Emotional distress
- Economic harm
- Physical harm
Slander per se categories
Plaintiff is relieved of duty to show “special harm “ if the statement accuses someone of…
- A criminal offense
- A loathsome disease
- A matter incompatible with his business, trade, profession, or office
- Serious sexual misconduct
Presumed damages
Recovery without any evidence of injury Sometimes permitted where P established that defamation consisted of libel or slander per se
What’s the role of truth/falsity?
SUBSTANTIAL truth is an absolute defense
Sometimes P bears burden of proving statement was false; sometimes D has an absolute/affirmative defense to prove that it was true
When is a statement substantially true?
A statement is “true” if the literal truth would produce the same effect on the reader (slight inaccuracies are immaterial)
Liability for opinions?
No.
“A statement on matters of public concern must be PROVABLE AS FALSE before there can be liability under state defamation law”
“Protection for statements that cannot reasonably be interpreted as stating actual facts”
New York Times v. Sullivan
Actual Malice Standard for Public Officials (and now public figures):
If the plaintiff is a public official, she must prove that the defendant acted with actual malice:
‣ D KNEW the statement was false or acted with RECKLESS DISREGARD that the statement was false
Who is a Public Official?
A public official has “such apparent importance that the public has an independent interest in the qualifications and performance of the person who holds it, beyond the general public interest in the qualifications and performance of all govt. employees” a.k.a. POLICY MAKERS
◦ Note: Just because you’re a govt. employee doesn’t make you a public official
Private Figure/Public Concern must show…
1) A false, defamatory statement
2) Of and concerning you
3) Made with some degree of fault (not actual malice)
◦ BUT, for presumed or punitive damages, must show actual malice (otherwise, just compensation for actual injury)
Private Figure/Private Concern must show…
1) A false, defamatory statement
2) Of and concerning you
3) Made with some degree of fault (not actual malice)
Public Figure/Private Concern
Supreme court hasn’t ruled on this. If they are an all-purpose public figure, their “matters of private concern” are matters of public concern
1) A false, defamatory statement
2) Of and concerning you
3) Made with actual malice
Public Figure/Public Concern
1) A false, defamatory statement
2) Of and concerning you
3) Made with actual malice
Actual Malice
Statements made with knowledge that the statement was false or with reckless disregard as to their falsity
Reckless Disregard
‣ Evidence of an intent to avoid the truth
‣ Evidence that the defendant entertained serious doubts as to the truth of his publications
‣ Evidence that defendant acted with high degree of awareness of a statement’s probable falsity
Limited-Purpose Public Figure
Someone who has thrust themselves to the forefront of a public controversy, often in order to influence its resolution
‣ 1) Must be a public controversy already being talked about
‣ 2) Look at the extent of the plaintiff’s participation in the public controversy
• Did the plaintiff purposely thrust themself into the public spotlight?
• How prominent a role did the individual play in the public controversy?
‣ 3) Does the statement relate to the issue for which the individual would be a limited-purpose public figure?
All-Purpose Public Figures
A very small group, “household names,” who have such a level of notoriety that makes all statements about them matters of public concern – (must prove actual malice for any statement)
Involuntary Public Figure
‣ 1) Be a central figure in a significant public controversy, AND
‣ 2) Have assumed the risk of publicity, even if one did not seek to publicize her views or influence discussion on an issue of public controversy
Absolute Privileges
‣ Truth
‣ Consent (just need to know something bad could be said)
‣ Judicial proceedings privilege (protects statements made in the course of litigation, “some relation to the proceeding”)
Qualified Privileges
‣ Common Interest Privilege
‣ Public Interest Privilege
‣ Privilege to Protect One’s Own Interest/Interest of Another
‣ Fair Comment Privilege
You can lose protection of a qualified privilege if…
1) Communicator primarily motivated by ill-will
2) Excessive publication of defamatory statement
3) Statement was made without belief or grounds for belief in its truth
Common Interest Privilege
Protects communication made on matters in which the parties have a common interest of duty.
“If the communication was made in good faith to serve the interests of the publisher and the person to whom it is addressed”
Public Interest Privilege
Affords protection to a private citizen who publishes defamatory matter to a third person, even though he is not a law enforcement officer, under circumstances which, if true, would give to the recipient a privilege to act for purposes of preventing a crime or of apprehending a criminal or fugitive
Fair Comment Privilege
Protects statements made by D when, after expressing an opinion, he discloses the facts upon which the opinion is based (as long as the facts are true)
Media Privileges
‣ Fair Reporting Privilege
‣ Neutral Reporting Privilege
Fair Reporting Privilege
Protects a fair/true/impartial account of:
‣Judicial proceeding (unless prohibited)
‣Official proceeding
‣Executive/legislative proceeding
‣Proceedings of a public meeting dealing with a public purpose
(courts are split on whether malice defeats this privilege)
Neutral Reporting Privilege
Protects the press from liability for reporting newsworthy statements, even if the publisher harbors serious doubts about their truth
