Defamation Flashcards
1
Q
Defamation - Elements
A
- Defamatory statement that specifically identifies the plaintiff
- published to a third party
- falsity of the defamatory language
- fault on the part of the defendant
- damage to pl’s reputation
2
Q
Defamatory Statement
A
- one tending to adversely affect one’s reputation
- statement of op is actionable only if it appears to be based on specific facts and an express allegation of those facts would be defamatory
- name-calling is insufficient
3
Q
Inducement and Innuendo
A
- if the statement isn’t defamatory on its face, pl may plead additional facts as “inducement” to establish defamatory meaning by “innuendo”
4
Q
Defamation - Living Person Requirement
A
- any living person may be defamed
- defamation of a deceased person is not actionable
- a corporation, unincorporated assoc, or partnership may be defamed
5
Q
Defamation - Identification Requirement
A
- pl must establish that a reasonable reader, listener or viewer would understand that the defamatory statement referred to the pl
- if statement doesn’t refer to pl on its face, extrinsic ev may be offered to establish that the statement refers to pl (known as pleading “colloquium”)
6
Q
Group Defamation
A
- if the defamatory statement refers to all members of a SMALL group, each member may establish that the statement specifically identifies them by alleging that they are a group member
- if the statement only refers to some members of a small group, the pl can recover if a reasonable person would view the statement as referring to the pl
- if the statement is about a large group, no member can prove that the statement specifically identifies them (no one wins)
7
Q
Defamation - Publication
A
- a communication of def to a third person who understands it
-> i.e. CAN’T be defamation if statement made only to pl - can be either intentional or negligent -> requisite intent = intent to publish, not necessarily to defame
- each repetition is a separate pub, but most states have “single publication” rule for magazines + newspapers
8
Q
Defamation + Publication - Who May Be Liable
A
- primary publishers are liable to same extent as author or speaker
- one who repeates a defamation is liable on the same general basis as primary publisher (even if she states source or makes it clear she doesn’t believe the statement)
- one selling papers or playing audio= a secondary publisher -> liable only if knows or should know of the defamatory content
- internet service provider not treated as a publisher when a user posts defamatory content
9
Q
Defamation - Falsity
A
- under trad common law, pl didn’t have to prove statement was false (def had to prove truth as a defense)
- many states now require pl to prove falsity as part of case-in-chief
-> even in states that still follow common law, pl must prove falsity in any case where pl is constitutionally obligated to prove fault - note that if the statement is TRUE, you should still consider if pl has claim for intentional infliction of emotional distress or invasion of right to privacy
10
Q
Defamation - Fault on Def’s Part
A
- majority of states require showing of fault on the par of the defendant
- also constitutional limitations depending on pl’s status
11
Q
Defamation - Public or Official Figures
A
- public or official figures must prove actual malice
12
Q
Public or Official Figure - Definition
A
- public figure = person who’s achieved pervasive fame or notoriety or by voluntarily assuming a central role in a particular public controversy
13
Q
Actual Malice - Definition
A
- knowledge that the statement was false OR
- reckless disregard as to whether it was false
- SUBJECTIVE test
- def’s spite or ill will not enough
- deliberately altering a quotation may constitute malice if the alteration causes a material change in the meaning conveyed by the quotation
14
Q
Defamation - Private Persons + Matters of Public Concern
A
- when a private person = pl, only negligence regarding falsity must be proved if the statement involves a matter of public concern
-> if NOT a matter of public concern, constitutional restrictions don’t apply (though many states still require negligence) - if def negligent, only “actual injury” damages are recoverable
-> vs. malice, punitive damages allowed + actual damages may be presumed
15
Q
Defamation - Actual Injury
A
- not limited to econ damages
- may include damages for impairment to reputation + personal humiliation as long as pl presents ev of such damages
16
Q
Public Concern - Definition
A
- courts look at content, form, + context of pub to determine whether it involves a matter of public concern
17
Q
Defamation - Damage to Pl’s Reputation
A
- type of damages pl must prove depends on type of defamation involved
- damages generally presumed under law of libel
18
Q
Libel
A
- a defamation that is embodied in a permanent form
- often written or printed pub
- doesn’t include radio + tv
- pl typically doesn’t need to prove special damages to recover + general damages are presumed
19
Q
Slander
A
- spoken defamation
- pl must prove special damages (i.e. must have suffered some pecuniary loss in order to recover anything), UNLESS the defamation falls within a slander per se category
20
Q
Slander Per Se Categories
A
Includes defamatory statements that:
- adversely reflect on pl’s business or profession
- state that the pl has committed a serious crime
- impute that pl has engaged in sexual misconduct
- state that the pl has a loathsome disease
21
Q
Defenses to Defamation
A
- consent (complete defense)
- truth (also complete defense)
- privileges
22
Q
Defamation - Privileges
A
- def may be protected by absolute privilege for communications between spouses or remarks made during judicial proceedings, by legislators during proceedings, by federal executives, in “compelled” broadcasts
- qualified privileges - can be lost through abuse
23
Q
Defamation - Qualified Privileges
A
- qualified privilege arises only when there’s a public interest in encouraging candor
- def bears burden of proving the privilege exists
- whether a speaker has a qualified privilege will be determined on a case-by-case basis
- qualified priv may be lost if statement not within scope of privilege or shown that speaker acted w/ actual malice
24
Q
Possible Examples of Qualified Privilege
A
- references and recommendations
- reports of public hearings or meetings
- statements made to those who are to take official action
- statements made to defend one’s own actions, property or reputation
25
Q
Defamation - Mitigating Factors
A
- ex: no malice, retraction, anger of the speaker provoked by pl
- may be considered by the jury on the damages issue
- not defenses to liability
