DEFAMATION Flashcards
Common law defamation
Occurs when a false and defamatory statement of or concerning the plaintiff is published to a person other than the plaintiff causing damage to the plaintiff’s reputation.
For defamation, what is required
to meet the “Publication to a
third party” element and does
this need to be done
intentionally?
The publication must be
made to a 3rd party AND the
3rd party must understand the
statement. The statement can
be made intentionally or
negligently.
What is the standard of fault in publication:
The publication can be made intentionally (knowledge of falsity) or negligently (insufficient care). Repeaters of the defamatory statement can also be liable. It is the intent to publish the statement, not the intent to defame that satisfies this element.
Dan made a defamatory
statement about Pat to Steve.
Steve repeated that statement to
Gabe. Can Steve also be liable
for defamation if he was just
repeating what Dan told him
verbatim?
YES - Repeaters of the defamatory statement can also be liable. It is the intent to publish the statement, not the intent to defame that matters.
What is the difference
between libel and slander?
And give an example of
each type.
Libel is written or printed defamation. Slander is spoken or verbal defamation.
An example of libel is a radio broadcast (which is considered printed).
An example of slander is an oral conversation between two people at a coffee shop. (Examples could vary here).
What are the elements for Constitutional law defamation requirements?
Must be analyzed if the defamation is a matter of public concern. Constitutional defamation requires that the plaintiff prove the elements of common law defamation (as noted above) and establish fault on the part of the
defendant. The test to determine fault depends on the status of the plaintiff.
In a defamation case, if the matter is one of public concern, what fault is required on the part of defendant if the plaintiff is a public figure or a private figure?
If plaintiff is a public figure, defendant must prove that P acted with malice (knowledge of falsity or a reckless disregard of truth/falsity) – then damages would be presumed. If plaintiff is a private figure, defendant must prove that
P acted with negligence and only actual damages are recoverable.
What is the difference between a Public Figure and a Private Figure?
A plaintiff is a public figure when he has achieved pervasive fame or notoriety or voluntarily assumed a role in a public controversy.
A private person is any person not considered a public figure.
A private duty nurse on occasion worked in a hospital. The hospital called a private duty referral agency through which the nurse usually obtained employment and asked that in the future she not be assigned to patients in the hospital. The referral agency asked the hospital why it had made the request. The
hospital sent a letter to the agency giving as the reason for its request that significant amounts of narcotics had disappeared during the nurse’s shift from the nursing stations at which she had worked. The hospital reasonably believed the nurse took the narcotics.
If the nurse asserts a claim based on defamation against the hospital, will the nurse likely recover and why?
No, the nurse will not likely recover because the hospital had a qualified privilege to protect the interest of the 3rd party or itself and it had reasonable grounds to believe the
nurse took the narcotics so it was permitted to disclose that belief to the agency at the agency’s request.
