Defamation Flashcards
Defamation Elements
1) A defamatory statement that specifically identifies the plaintiff
2) published to a third party
3) falsity
4) fault
5) Damages
“Defamatory statement”
Factual Statement that adversely affects reputation.
PURE OPINION is not defamatory. Opinion is actionable only if implies a fact.
–Name calling is not sufficient.
Doesn’t need to actually say name. Any identifying info is sufficient.
P must be alive when statement is made.
Defamatory Statement and Groups
If pointed at group:
–small group: everybody has a claim
–large group: no one has claim
“Published to a third party”
COMMUNICATE the statement to a THIRD PARTY. Just one T is sufficient.
More Ts, generally more damages b/c greater reputational harm.
No intentionality requirement. Can be simply negligent.
“Falsity”
Burden on P
“Fault”
Degree of awareness that D had concerning the statement. IF D had reasonable, good faith belief that statement was true, no liability.
Fault required DEPENDS ON P.
–private person: Negligence
–Public figure: Actual malice (Knowledge or reckless disregard)
Who are public figures
Anyone regularly in public eye.
Also people involved in an event of public concern (limited public figures)
–AM only governs if statement relates to why they are in the public eye
“Damages” (Def)
Doesn’t always require eveidence. Sometimes its presumed, and t/f this ele,ent drops out. Depends on subcateogires of defamation cases.
Libel (recorded): Damages presumed
Slander per se (oral): Presumed
Other Slander: must prove economic harm
–got fired, didn’t get hired b/c of it, lost K, revenues down, etc.
Slander Per se
Oral. So clearly defamatory that ordinary person would understand injury.
Caterogries:
1) Relating to Business/profession
2) Accusation of serious crime
3) Accusation of serious sexual misconduct
4) Accusation that P suffers from “loathsome disease”
–Lepresy; STDs
Affirmative Defenses to Defmaation
1) Consent
2) Privleges (two kinds)
Absolute Privlege
Based on identity of D.
Communication Between spouses. You can say anything you want to them.
Gov officials: Remarks made during judicial proceedings, by legislators during proceedings, by federal executive officials, in compelled broadcasts
Qualified Privlege
Case-by-case basis when public interest in encouraging candor. Only applies to statements made in GOOD FAITH and RELEVANT in SCOPE.
Examples:
1) References and recommendations
2) Colleagues within same organization (common interest privlege)
