Defamation

Question 1

What are the elements of defamation?

Answer 1

1. a false and defamatory statement (libel or slander) concerning an identifiable, living person
2. that is published to a third person (without privilege, e.g. consent)
3. that damages the persons reputation
4. that satisfies first amendment requirements regarding falsity and level of fault

PLAINTIFF has the burden of proving falsity

ezz–>
1. saying something untrue and harmful about a real person
2. sharing that harmful statement with someone else without a good reason or permission
3. the false statement must harm the persons reputation
4. the statement must meet legal standards for being false and the person saying it must have known it was false or been negligent in finding out the truth

Question 2

nature of a defamatory communication

if a statement can mean something bad or something harmless

Answer 2

• IT IS UP TO THE JURY TO DECIDE IF THE MEANING INTENDED IN A DEFAMATORY MANNER
• if a statement can be understood in only one way that’s harmful to someones reputation, a judge will decide if its defamatory. if it hurts the plaintiffs character, a persons reputation depends on the opinions of who read the article. if one of the two meanings can be defamatory, then the article will be found libel.

if it Is clear to an ordinary reader the false statement made is one that could injure the personal or professional character of the plaintiff.

Question 3

defamatory words

Answer 3

harmful words “must expose the plaintiff” to distrust, hatred, contempt, ridicule, or obloquy,

for civil action for libel to stand
the harmful words must make others see the person in a bad light, like being disliked, ridiculed, or not trusted

Question 4

To maintain a claim for libel, is it necessary for the plaintiff to show that his reputation was harmed by the statement in the eyes of most people?

Answer 4

NO, to maintain a claim for libel, it is not necessary that the plaintiff’s reputation be harmed in the eyes of all or even most (majority) people,

people, but rather it is sufficient that the reputation of the individual is harmed in the eyes of some (minority)

it is enough that the communication and defamation actually cause harm and make him look bad in the eyes of a respectable minority of the community,

Question 5

In asserting the affirmative defense of truth in a libel action, is it sufficient for the defendant to claim that he heard the content of his publication from third parties without offering any real proof that the statements in the publication are true?

Answer 5

• In order to support affirmative defence of truth in a libel action, defendant has to prove that the statement was substantially true (for the most part).
• if you can prove that what was said is mostly true, it can be a defence.
• but you can’t defend yourself by just showing that the person has a generally bad reputation

Question 6

Can a group of 25 people [large group] libeled bring suit if the language refers to “most” of the group?

Answer 6

if a large group is insulted together, none can sue.
- but if the group is small and each member is mentioned individually, then anyone in that group can sue.
- still even in a big group, if the circumstances make it clear who’s being insulted, that person can sue

Question 7

Numerical approach (majority approach)

Answer 7

if someone says something bad about a group or class, they can be sued and held liable by an individual member of that group if
1. the group is small enough that it is clear who they are talking about or/
2. the way it was said makes it obvious they are talking about that specific person.

Question 8

intensity of suspicion test (minority approach)

Answer 8

the size of the group is not the only thing that matters in a defamation case, but it does affect the chances of winning.

only living people can be defamed, not their estates after they have passed away.

however, if something said about a dead person also affects someone who’s alive, that person can sue for defamation.

Question 9

can a corporation bring a suit for defamation,? what about charitable organizations, and governmental entities?

Answer 9

a corporation can not sue for defamation unless the harmful statement was specifically meant to damage its reputation or business.

• non-profit organizations have a stronger case because defamation can hurt their ability to get donations or funding
• government entities can’t sue for defamation

Question 10

Can a book based on a real person be libelous if the person’s name and appearance are altered in the book?

reasonableness of identification rule –>

Answer 10

if a fictional character in a book or article is too different from he real person, so a reasonable person wouldn’t think they are the same, there’s no libel.

• the test is whether most people would be able to tell the character is the same person in real person.
• even if just one person can reasonably link the character to the real person, a defamation suit can still be brought, damages may be less if fewer people can make that connection, in this case a fictional setting does not protect against a defamation claim if most people would see the character as portrayal of the real person.

Question 11

What is libel?

Answer 11

publication of defamatory words that are either written or printed; any physical form of communication that has the characteristics of written or printed words

words that are written or printed in any physical form, like in a book, newspaper, or even online.

Question 12

what is slander?

Answer 12

defamation through spoken words, gestures, or any other non-written form is considered slander, not libel

Question 13

what is dissemination ?

Answer 13

is the purposeful and premeditated character of the publication and defamation, are factors to be considered when trying to determine is a false publication is libel or slander.

• whether harmful statement was planned and repeated over time can affect whether its considered libel (written) or slander (spoken)

Question 14

if the defendant’s statement is not defamatory, does liability for damages based on a defamation claim require the plaintiff to prove special damages to his reputation caused by the statement?

Answer 14

to get compensation for non-defamatory words that still harmed reputation, the person must prove their reputation was uniquely harmed and that the harm was typical for what an ordinary would react.

Question 15

what are special damages?

Answer 15

when slander stops someone from getting something they should have gotten, like a marriage partner, customers, or a place to live, it causes harm

the harm from defamation needs to be financial, like losing money, for the person to get compensation.
- just feeling upset or getting physically sick from defamation isn’t enough for compensation unless they already proved the defamation itself.

Question 16

4 Types of Slander that are exception to the general rule, and are actionable without proof of special damages

Answer 16

1. imputations (claims) of major crimes
2. loathsome disease
3. business, trade, profession, or office
4. serious sequel misconduct

Question 17

what must a slanderous statement do for it to be considered defamation? (publication)

Answer 17

For it to be a defamation action, a slanderous statement must be “published”, it must be heard, and understood by a third party.

Question 18

is a matchmaking site held liable for defamatory content posted in a fake account made by someone else?

Answer 18

NO

Question 19

if there is defamatory remarks throughout the book, are you able to bring more than one action?

Answer 19

NO, only one one chance to bring action, even if posted multiple times in different copies of the book

if something defamatory is published in a book, magazine, or newspaper, there’s only one opportunity to take legal action for libel, and it happens when the harmful material is first published.

Can only sue for the harm once.

Question 20

Can you defame a corporation

Answer 20

yes its possible
can’t defame a corp based on saying things like corp has HIV

• can say bad credit, dishonesty, defamation that hurts the reputation

Question 21

publication rule

Answer 21

for it to be defamation action, a slanderous statement must be “published”, it must be heard, and understood by a third party.
other then the plaintiff

Question 22

actual malice and who does it apply to

Answer 22

the speaker had actual doubts about what they were saying, subjective standard

if someone makes false statements about a public official and purposely chooses not to check if those statement are true, that can be enough to show “actual malice” in a defamation claim

If speaker consciously turns a blind eye to conflicting information that can establish ACTUAL MALICE

Action against public figure
Proof has to be of clear and convincing evidence of malice

Failure to investigate alone will not be enough to a finding of actual malice

Burden of proof on the plaintiff when the plaintiff is a “public figure” to prove the actual falsity of the statement

Plaintiff must also prove by clear and convincing evidence that the false statement was made knowingly or with reckless disregard of its falsity (actual malice)

Question 23

actual malice and private individuals

Answer 23

does not apply to private individuals

Question 24

speech of private concern, cases where false statements are made, but aren’t about public issues

Answer 24

court may allow the person harmed to get presumed and punitive damages, even if there is no evidence of intentional harm

• speech on concerns of private concerns are less, and not totally unprotected by first amendment

is not always actual malice if not matter of public concern

Question 25

protection for private persons

Answer 25

• defaming statements about private figures on “matters of public concern” can not be penalized unless they were made knowingly or negligently with regard to falsity
• defaming statements about private persons and regarding purely private conduct get no special procedural protections under the US contribution although state law. may require some heightened proof standard

Question 26

Falsity

Answer 26

P required to show falsity
- bcz of fact that it is on them to prove

on P to prove that statements were true

example –> if media outlet publishes something important to the public, like news, or info, about a public issue, and a private individual is harmed by it, the individual can only get damages if they can prove the statement is false, and the media is responsible for the harm

CANNOT DEFAME A DEAD PERSON

Question 27

opinion defence

Answer 27

first amendment does not automatically protect opinions from defamation laws

• diff between something that is a fact and not a fact

if the defamation is a false fact, then you can have a defamation case
- if its a fact then NO defamation case

opinion of ppl does not get much attention, or too much constitutional protection

• if a statement can be seen as a fact, then it is constitutionally protected

Question 28

do we need an actual malice standard for private individuals of public matter

Answer 28

has to be a negligence standard, standard of care
- Lowest level of fault is negligence

Question 29

what separates a fact from opinion

Answer 29

• type of language used
• meaning of the statement in context
• whether the implied fact can be verified
• the circumstances which statement was made
• if actual fact basis of the opinion was disclosed

Question 30

defenses and priviliges to defamation

Answer 30

• truth
• consent
• certain governmental actors (judge, witness, juror, legislator (lawyers), prosecutor)
• spouses to each other
• first amendment

Question 31

privileges and the two types

Answer 31

1. absolute privilege
2. qualified / conditional privilege

Question 32

absolute privilege

Answer 32

complete bar to defamation
- judicial proceedings
- legislative proceedings
- public officials - when the statement is within the federal office,
- state level - high level officers

Question 33

qualified conditional privilege

Answer 33

protection of publishers interests -
- you can make statements that are in your best interest, ex someone steals from you, you can say things to get your stuff back and get compensation

protection of this parties interests -
- if you believe there’s important info that affects someone else’s interests, you are legally required to share it, or just right things To do
ex - safety hazard that could harm others

common interest -
- if you and someone else share an interest, like being part of the same church or someone owes both of. you money, you can talk about things related to that interest

these privileges allow you to speak up for yourself when it is important, and discuss common interest without worry

Question 34

common law privileges

Answer 34

D can successfully rely on privilege even though he was aware of the fact that the statement was false

1. fair reporting
   - report to public proceedings, public records, restriction to report is that it must be accurate and fair or disinterested
2. privilege to provide means of publication
   - when author of defamatory statement is privileged to publish it,
   those who give him the appropriate means of publication are also privileged to do so.
   - anyone who helps him in this publishing, will also be privileged
3. fair comment
   - allows publisher to give criticism, on matters of public concerns, matter of public activity
   - can not be paid to do so, or hate the owner can not slander
   - has to be opinion