Defamation Flashcards
What are the elements of defamation?
- a false and defamatory statement (libel or slander) concerning an identifiable, living person
- that is published to a third person (without privilege, e.g. consent)
- that damages the persons reputation
- that satisfies first amendment requirements regarding falsity and level of fault
PLAINTIFF has the burden of proving falsity
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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
nature of a defamatory communication
if a statement can mean something bad or something harmless
- 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.
defamatory words
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
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?
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,
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?
- 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
Can a group of 25 people [large group] libeled bring suit if the language refers to “most” of the group?
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
Numerical approach (majority approach)
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.
intensity of suspicion test (minority approach)
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.
can a corporation bring a suit for defamation,? what about charitable organizations, and governmental entities?
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
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 –>
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.
What is libel?
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.
what is slander?
defamation through spoken words, gestures, or any other non-written form is considered slander, not libel
what is dissemination ?
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)
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?
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.
what are special damages?
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.
4 Types of Slander that are exception to the general rule, and are actionable without proof of special damages
- imputations (claims) of major crimes
- loathsome disease
- business, trade, profession, or office
- serious sequel misconduct
what must a slanderous statement do for it to be considered defamation? (publication)
For it to be a defamation action, a slanderous statement must be “published”, it must be heard, and understood by a third party.
is a matchmaking site held liable for defamatory content posted in a fake account made by someone else?
NO
if there is defamatory remarks throughout the book, are you able to bring more than one action?
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.
Can you defame a corporation
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
publication rule
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
actual malice and who does it apply to
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)
actual malice and private individuals
does not apply to private individuals
speech of private concern, cases where false statements are made, but aren’t about public issues
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
protection for private persons
- 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
Falsity
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
opinion defence
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
do we need an actual malice standard for private individuals of public matter
has to be a negligence standard, standard of care
- Lowest level of fault is negligence
what separates a fact from opinion
- 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
defenses and priviliges to defamation
- truth
- consent
- certain governmental actors (judge, witness, juror, legislator (lawyers), prosecutor)
- spouses to each other
- first amendment
privileges and the two types
- absolute privilege
- qualified / conditional privilege
absolute privilege
complete bar to defamation
- judicial proceedings
- legislative proceedings
- public officials - when the statement is within the federal office,
- state level - high level officers
qualified conditional privilege
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
common law privileges
D can successfully rely on privilege even though he was aware of the fact that the statement was false
- fair reporting
- report to public proceedings, public records, restriction to report is that it must be accurate and fair or disinterested - 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 - 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
