Defamation Flashcards
Defamation
A false statement concerning P, made by D to at least one person other than P, that is harmful to P’s reputation
-Falsity and fault are always required for defamation
Defamation-Common law elements
1) A false (constitutional rules impact whether P has burden to prove falsity or D has burden to prove truth)
2) Defamatory statement: adversely affects P’s reputation
-Must be based on specific facts
3) Concerning P: must be reasonably understood that the statement concerns a living P or a very small group of Ps
4) Publication: statement must be intentionally or negligently made to a third person
5) Harmful to P’s reputation
Defamation-liability for republication
The republisher of a defamatory statement is liable to the same extent as the original publisher
-Note: internet service providers are not liable for statements made by others posted on their platflorms pursuant to federal statute
Defamation-damages
P’s burden of proving damages relies on the type of plaintiff, if statement is a matter of public concern, or if it is slander per se
-Truth is a complete defense
-No requirement at common law for P to prove fault
Defamation: Constitutional considerations
- 1A considerations arise when defamation involves a public figure, public official, and/or a matter of public concern
- Additional elements:
1) Fault: P must prove D was at fault
-Standards differ for public vs private figures:
-Public official or figure: actual malice standard (knowledge of the statement’s falsity or reckless disregard to whether it was false)
-Private figure: negligence standard
2) Falsity
-Public officials and public figures must prove falsity
-Private figures must prove falsity only if speech pertains to matter of public concern
-If private figure/private speech, states may require D to prove truth
Defamation: public figures, public officials
- Public figure = one who has pervasive fame or notoriety, or who voluntarily assumes a central role in a public matter
- Public official = public office holder
Defamation: damages considerations
Damages depend on the type of plaintiff, content, and whether the defamatory statement consitutes libel, slander, or slander per se
Libel
A written defamatory statement
* Public figures and public officials who prove “actual malice” may recover “presumed damages” for reputational harm without any proof
* Private figures who prove negligence may recover “presumed damages” only if the speech relates to a matter of private concern
* If public concern, private figures may recover only proved actual damages
* Note: TV and radio broadcasts are considered libel
Slander
A spoken defamatory statement
* P must prove “special damages” unless the statement constitutes slander per se
* Special damages: a specific economic loss
Slander per se
A defamatory statement that either:
a) Adversely reflects on P’s business or professional reputation;
b) Claims that P has a loathsome disease;
c) Claims that P committed a crime of moral turpitude; or
d) Imputes P’s chastity
Defenses to defamation
Consent, truth, and privilege may be valid defenses to defamation
Defenses to defamation-Consent
P consents to one or more required elements
-E.g. P may consent to an organization investigating her and sharing its findings with potential employers
Defenses to defamation-Truth
Allegedly defamatory statement is true
-Truth is a complete defense to a defamation claim
Defenses to defamation-Privilege
Certain types of statements are privileged
* Absolute privilege: protects statements by govt. officials in their official capacity
* Qualified privilege: D’s liability for defamatory statements is limited where:
-D invites the statement and/or recipient has an interest: e.g. employment reference, credit report, letter of recommendation
-Statement is in the public interest: e.g. book reviews, statement to a parole board
