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Torts > Defamation > Flashcards

Defamation Flashcards

1
Q

Defamation

A

When a defendant published defamatory material concerning the plaintiff that caused reputational damage.

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2
Q

Things to Look For in a Defamation Question

A
  • A defamatory message
  • Certain pleading problems
  • Publication of the message
  • The type of defamation
  • Damages
  • Common law defenses
  • Constitutional issues
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3
Q

Defamatory Message

A

A message that holds a P up to hatred, ridicule, contempt, or scorn.

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4
Q

Defamatory Message: Fact v. Opinion

A

Generally, only statements of fact are actionable as defamatory. Whether something is a statement of fact is used with a reasonable person standard.

However, expressions of opinion that imply that the speaker knows certain facts to be true or that certain facts exist, may be sufficient to classify messages as defamatory.

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5
Q

Defamatory per se

A

A message can be defamatory per se if it is apparent on the face of the message that it will injure the plaintiff’s reputation.

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6
Q

Pleading Problems

A
  • The party suffering the defamation must have been a living person or an existing organization.
  • A party cannot assert defamation vicariously no matter how close they are to a third party
  • When a D makes a defamatory statement about a group of persons, his liability to individuals varies according to group size and the nature of the message (larger the group = less likely defamation will be found)
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7
Q

Form of Communication

A

Any form of communication may be defamatory. But if the plaintiff is not specifically named in the allegedly defamatory communication, he must allege through colloquium that some people will interpret the communication to be about him.

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8
Q

Publication

A
  • It is not actionable to utter a defamatory message to the plaintiff alone. The message must also be communicated to a third person, who receives and understands it.
  • A message is “published” if the D intentionally published it or negligently permitted it to be communicated to third persons (if it is reasonably foreseeable that an eavesdropper might overhear a message, for example, and does so, there is a sufficient publication).
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9
Q

Republishing Rule

A

-In addition to the D who originates the defamatory message, other persons who repeat it may be liable to the plaintiff, varying according to their relationship to the original publisher.

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10
Q

Types of Defamation

A

Include libel (defamation preserved in permanent form) and slander (spoken)

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11
Q

Importance of Libel v. Slander

A
  • For libel –> reputational harm is presumed, but the damages have to be proven
  • For slander –> P must prove special damages (specific economic losses that flow from the slander)
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12
Q

Slander per se

A

A type of slander historically regarded as so harmful that it is presumed that the plaintiff suffered damage from the very fact of its utterance.

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13
Q

Types of Slander per se

A

Include:

  • A slander that imputed to the P the commission of a crime involving moral turpitude or infamous punishment (imprisonment or death)
  • Allegations of the P having a loathsome disease are slander (venereal disease or leprosy)
  • Slander which imputes to the P behavior or characteristics that are incompatible with the proper conduct of his business, profession, or office; and
  • It was slander per se to falsely impute unchastity to a woman
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14
Q

Libel per quod

A

A libel as to which it is not apparent on the face of the communication that it is defamatory. A P must plead and establish extrinsic facts to establish that the libel was defamatory and that it referred to the P.

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15
Q

Distinguishing Libel from Slander

A

Where it is not clear whether a defamatory message is libel or slander, factors to distinguish the two include:

  • permanence of the form
  • the area of dissemination
  • the extent to which the message was planned rather than spontaneous
  • the more permanent the form, widely disseminated, and planned a defamatory message is, the more likely it is to be considered libel
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16
Q

Damages for Defamation

A

Include:

  • Pecuniary damages
  • General damages
  • Punitive damages
17
Q

Pecuniary Damages

A

Quantifiable $ losses suffered by the plaintiff due to the injury to his reputation. Includes:

  • loss of customers
  • loss of a job
18
Q

Are Pecuniary Damages an Element of a Defamation Claim?

A

Proof of pecuniary damages is necessary to establish a prima facie case if the form of defamation is slander and, in some states, if it is libel per quod.

19
Q

General Damages

A

Nonpecuniary aspects of the injury to reputation such as:

  • humiliation
  • loss of friends
  • When the form of defamation is slander per se or “ordinary” libel. It is presumed that the P suffered general damages.
20
Q

Punitive Damages

A

Are assessed against the D to punish and deter future wrongful conduct. The P must make some additional evidentiary showing of vexatiousness or evil intent to recover punitive damages.

21
Q

CL Defenses to Defamation

A

Include:

  • Truth
  • Absolute Privilege
  • Qualified Privilege
  • Constitutional Issues
22
Q

Truth

A

Remember that in almost all cases, the P must prove falsity as part of his prima facie case.

23
Q

Absolute Privilege

A

When a D may not be held liable for an otherwise defamatory message as a matter of law. It is the Ds burden to show that an absolute privilege applies.

24
Q

Types of Absolute Privilege (LEJS)

A
  • Legislature- statements made on floor of legislature
  • Executive- communications between high ranking executive officials
  • Judicial- statements that are made in the context of judicial proceedings
  • Spouse- A defamatory message communicated by one spouse to another
25
Q

Qualified Privilege

A

If a qualified privilege is applicable, a D is not held liable for otherwise defamatory messages he utters unless he loses the protection of the privilege.

26
Q

Types of Qualified Privilege

A

A statement that:

  • was made in communication that appears reasonably necessary to protect or advance the Ds own legitimate interests
  • that were communicated on a matter of interest to the recipient of the communication or a third person
  • that were communicated concerning a matter of public interest to empowered to protect that interest
  • that contained in a criticism of a matter of public interest; and
  • that are republished in a report of public hearings or meetings, so long as the Ds report is fair and accurate.
  • the D bears the burden of establishing that a qualified privilege is available.
27
Q

Losing the Qualified Privilege

A

A D loses the privilege if:

  • he acts out of malice
  • he exceeds the scope of the privilege
  • he does not believe the truth of the defamatory communication
  • A P bears the burden of establishing that the privilege was lost.
28
Q

Constitutional Issues with Defamation

A

Include:

  • Nature of the P (when P is a public official or public figure)
  • The subject matter of the defamatory statement (matters of public concern)
  • Presumed and punitive damages
29
Q

Constitutional Issues for Defamation (Public Officials or Public Figures)

A

Where a P is a public official or a public figure, the P must establish by clear and convincing evidence that the D acted with “malice” before any recovery may be had.

30
Q

What is a Public Official?

A

A government official who has or appears to have a substantial responsibility over gov operations (does include police officers).

31
Q

What is a Public Figure?

A

A person who has either achieved such pervasive fame or notoriety such that he becomes a public figure for all purposes; or voluntarily injected himself or allowed himself to be drawn into a particular public controversy

32
Q

What is Malice?

A

When one has knowledge of falsity or displays recklessness disregard for their truth.

33
Q

Constitutional Issues for Defamation: Subject Matter

A

When the statement deals with a matter of public concern, the D must be shown to have exhibited some degree of fault higher than strict liability (e.g. negligence)

34
Q

Distinguishing Matters of Public Concern and Private Speech

A
  • The test looks at the form, content, and context of the communication.
  • As a practical matter, if the D is a member of the media, or if the communication is widely disseminated, it is probably of public concern.
35
Q

Constitutional Issues in Defamation Cases: Punitive Damages

A

Punitive damages may be awarded upon proof in two situations:

  • in any case whether the P establishes that the D acted with malice
  • where the CL still applies, that is, where a private P sues for defamation as to a matter not of public concern.
  • Where negligence is the applicable degree of fault required by constitutional principles and the P does not show malice, the P may only recover actual damages.
36
Q

Actual Damages

A

Include all injuries to Ps reputation (broader than pecuniary damages).

Torts (8 decks)

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