Defamation

Question 1

Defamation elements

Answer 1

1. A defamatory statement that specifically identifies P
   -FACTUAL statement that hurts P’s reputation, but opinion may be actionable if it implies a specific fact
   -Name-calling is insufficient
   -P must be alive when the statement is made
   -Identifying details are sufficient
2. Published to a third party
   -Communication of the defamation to a third party who understands it
   -One person is sufficient, unless the one person is the plaintiff
   -Negligent publication is sufficient
   -A primary publisher (i.e., newspaper or TV station) is liable to the same extent as the author or speaker for repeating defamation
3. Falsity
   -Modern rule: P must show in its prima facie case that the statement is false
4. Defendant’s fault
   -Its the defendant’s fault is he promulgates falsehoods
   -Two different standards for private and public figures
   -Private figure: negligence standard
   -Public figure: actual malice (higher standard - must have knowledge that statement was false or reckless disregard as to whether it was false)
5. Damage to P’s reputation
   -Libel (written or printed defamation): damages are presumed
   -Slander (spoken defamation): must prove special damages (economic harm) unless slander per se

Question 2

Group defamation

Answer 2

If a defamatory statement refers to all members of:

1. A small group –> everyone has a claim
2. a large group –> no one has a claim

Question 3

Slander per se

Answer 3

Defamatory statements that:

1. Adversely reflect on P’s business or profession
   -i.e., doctor killed patient or butcher has rotten meat
2. State P committed a serious crime
   -i.e., P is a child molester
3. State P engaged in serious sexual misconduct
   -i.e., adultery
4. State P has “loathsome disease”

Question 4

Defenses to defamation

Answer 4

1. Truth (complete defense)
2. Consent (complete defense)
3. Privilege
   (A) Absolute privileges: (1) between spouses; and (2) remarks made during a government proceeding (covers lawyers in court)
   (B) Qualified privilege: common interest privilege (arises when there is a public interest determining candor)
   -Case-by-case determination, but must have good faith basis that is relevant in scope to protect from defamation
   -Examples: references and recommendations, statements made to defend one’s own actions, property, or reputation, statements made to a parole board about a prisoner, or reports of public hearings/meetings