Defamation

Question 1

Defamation - Elements

Answer 1

• 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

Question 2

Defamatory Statement

Answer 2

• 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

Question 3

Inducement and Innuendo

Answer 3

• if the statement isn’t defamatory on its face, pl may plead additional facts as “inducement” to establish defamatory meaning by “innuendo”

Question 4

Defamation - Living Person Requirement

Answer 4

• any living person may be defamed
• defamation of a deceased person is not actionable
• a corporation, unincorporated assoc, or partnership may be defamed

Question 5

Defamation - Identification Requirement

Answer 5

• 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”)

Question 6

Group Defamation

Answer 6

• 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)

Question 7

Defamation - Publication

Answer 7

• 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

Question 8

Defamation + Publication - Who May Be Liable

Answer 8

• 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

Question 9

Defamation - Falsity

Answer 9

• 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

Question 10

Defamation - Fault on Def’s Part

Answer 10

• majority of states require showing of fault on the par of the defendant
• also constitutional limitations depending on pl’s status

Question 11

Defamation - Public or Official Figures

Answer 11

• public or official figures must prove actual malice

Question 12

Public or Official Figure - Definition

Answer 12

• public figure = person who’s achieved pervasive fame or notoriety or by voluntarily assuming a central role in a particular public controversy

Question 13

Actual Malice - Definition

Answer 13

• 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

Question 14

Defamation - Private Persons + Matters of Public Concern

Answer 14

• 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

Question 15

Defamation - Actual Injury

Answer 15

• not limited to econ damages
• may include damages for impairment to reputation + personal humiliation as long as pl presents ev of such damages

Question 16

Public Concern - Definition

Answer 16

• courts look at content, form, + context of pub to determine whether it involves a matter of public concern

Question 17

Defamation - Damage to Pl’s Reputation

Answer 17

• type of damages pl must prove depends on type of defamation involved
• damages generally presumed under law of libel

Question 18

Libel

Answer 18

• 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

Question 19

Slander

Answer 19

• 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

Question 20

Slander Per Se Categories

Answer 20

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

Question 21

Defenses to Defamation

Answer 21

• consent (complete defense)
• truth (also complete defense)
• privileges

Question 22

Defamation - Privileges

Answer 22

• 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

Question 23

Defamation - Qualified Privileges

Answer 23

• 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

Question 24

Possible Examples of Qualified Privilege

Answer 24

• 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

Question 25

Defamation - Mitigating Factors

Answer 25

• 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