Defamation Flashcards
Defamation
Defamation involves a false defamatory statement made by D
To prove defamation:
(i) defamatory statement was made by D
* statement tends to lower P’s reputation in community
(ii) of and concerning P
* reasonable person must understand statement was about P
(iii) statement published to third party
* third party must have understood statement
(iv) it damaged P’s reputation
* Slander per se + Libel: general damages presumed
* Slander NOT slander per se: must prove and specifically plead special damages must be proven (actual pecuniary losses)
(v) falsity of defamatory language
* P must prove statement is false
(vi) fault on D’s part
* Public figure/official: must prove statement was made with actual malice (knew statement was false or acted with reckless disregard as to its falsity)
* Private figure + public concern: must prove statement was made with negligence as to its truth/falsity
* Private figure + private concern: no constitutional fault requirement but some states require negligence regarding falsity of statement
* If D only negligent, P recovers actual damages
* If D acted with malice, damages presumed and P can recover punitive damages
Note: Court looks at content, form, and context of publication to determine public vs. private concern
Defamatory statement must be statement of fact to be actionable.
* Statement of opinion actionable if it appears to be based on specific facts, which, if expressed, would be defamatory
Slander per se categories:
* Defamatory statement adversely reflects on P’s business/profession
* States P has committed serious crime
* Implies P committed serious sexual misconduct
* States P has loathsome disease (ex. gonorrhea)
Defenses to Defamation
Consent
* Complete defense
Truth
* D can prove truth of statement as complete defense
Absolute Privilege: Applies to statements
* made during judicial proceedings
* by legislators in debate
* between spouses
* federal executive officials in “compelled” broadcasts
* between spouses
Qualified Privilege: Where it’s reasonable for D to publish statement because of public interest in encouraging candor
* Lost if statement is outside scope of privilege or speaker acted with actual malice
* * D has burden of proving privilege exists
* Ex. References by landlord/employer/etc., statements made to parole board re: prisoner, report of public hearing
* Statements in interest of the publisher (defense of one’s actions, property, or reputation)
* Statements in interest of recipient
* Statements in common interest of publisher and recipient
Invasion of Privacy
Four types:
* Appropriation: Unauthorized use of P’s name or picture for D’s commercial advantage - primarily used to recover emotional damages (ex. humiliation)
* Intrusion: Intrusion on P’s affairs or seclusion (where such intrusion would be highly offensive to reasonable person)
* False Light: Publication of facts placing P in false light (material falsehoods circulated to public at large that would be highly offensive to reasonable person) - requires actual malice for matter of public concern
* Public disclosure of private (confidential) facts about P (that would be highly offensive to reasonable person and is not of any concern to the public; doesn’t matter if facts are true)
Defenses
* Consent
* Absolute/qualified privilege
* Truth is NOT a good defense
