Defamation Flashcards
Things to check for in a Defamation action
- Defamatory message - is it defamatory?
- Certain pleading problems
- publication of the message
- type of defamation - liable or slander
- damages
- common law defenses - privileges
- constitutional issues
P’s requirements for the establishment of a defamation action
D published defamatory material concerning P that caused reputational damage.
Defamatory message
lowers esteem in the community
discourages association
Subjects P to hatred, ridicule, contempt or scorn
stop doing business with him.
Must be a statement of fact - opinion not actionable
a message has injurious effect on any substantial minority of reasonable people.
Slander per se
A defamatory message not preserved in permanent form.
presumed damage from its very utterance.
- Imputation Crime of moral turpitude
- allegations of a loathsome disease
- unfit to perform in his profession
- impute unchastity to women
Defamation per Quod
A defamatory statement not injurious on its face
requires extrinsic facts to render the message defamatory explain
how it injures reputation.
Requirements for pleading of defamation per quod
- plead and prove inducement
- establish a defamatory meaning by innuendo; and
- show that he himself was the intended plaintiff by colloquium
How a message is determined to be defamatory
It must be understood by the person who receives it.
Judge determines whether a communication could be understood as defamatory. Once determined a jury will decide whether it was defamatory in the case before it.
Pleading problems in Defamation Actions
- Must be about a living person or existing organization. Defamatory messages about 3rd persons are only actionable to the extent the message also defames the plaintiff.
- Where an otherwise defamatory statement is made about a group of persons liability to individual plaintiffs will vary according to the size of the group and the nature of the defamatory message. Whether an individual member of a group has an action will be determined on a case by case basis and whether the member was sufficiently identified.
Publication
Communication made to a 3rd party,
not the plaintiff
a reasonable 3rd person understands it refers to the plaintiff.
A communication is published if it is made to a 3rd person negligently.
Factors distinguishing libel from slander
- permanence of the form
- area of dissemination
- extent to which the message was planned rather than spontaneous.
The more permanent the form, widely disseminated, and planned the message, the more likely it is to be considered libel
Types of damages recoverable in Defamation
Pecuniary Damages - quantifiable money damages
General Damages - non-pecuniary aspects of the injury to reputation
Punitive Damages - where there is vexatious or evil intent damages to punish plaintiff
Pecuniary Damages
quantifiable monetary damages suffered by P due to injury to reputation. Loss of customers, job, other diminished economic advantage. Must present evidence of actual monetary damages to recover and necessary to establish prima facie case for slander and, in some states, if it is libel per quod.
General Damages
in certain circumstances the jury may presume P suffered General damages as a result of D’s defamatory statement. These may include humiliation, loss of friends, etc. Jury may estimate the amount of presumed damages based on the extent of injury. With Presumed damages no proof of actual damages need be offered when the form of defamation is slander per se or ‘ordinary’ libel - not libel per quod.
Punitive Damages
Damages assessed to punish or deter future wrongful conduct.
Require a showing of vexatiousness or evil intent to recover punitive damages
Common Law Defenses to Defamation - list 4
Truth
Absolute Privilege
Qualified Privilege
Consent