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
Truth Defense for Defamation
In all cases save for when P is a private party and the matter is a private concern, P must prove falsity as a part of his prima facie case
Absolute Privilege Defense to Defamation
not liable for a defamatory message as a matter of law.
- Legislators utterance on the floor of the legislature during hearings
- Participant in judicial proceeding - judge, attorney, witness, juror - for utterances related to the proceeding. From filing until the termination of the action.
- Policy Making officials of the executive branch of the federal and state governments so long as utterances were made in the course of their duties and were relevant to those duties
- messages communicated between spouses
- Broadcast media D compelled under the fairness doctrine to utilize facilities is privileged against defamatory statements made by 3rd parties in such use
BoP for D in establishing Absolute Privilege
D has the burden of establishing an absolute privilege applies to his defamatory message.
qualified privilege
D will not be liable unless he loses the protection of the privilege.
a. Privilege will attach to communications made to protect or advance D’s own legitimate interests.
b. Or communicates on a matter of interest to the recipient.
c. or communicates concerning a matter of public interest to one empowered to protect that interest
d. messages republished in a report of public hearings or meetings so long as the report is fair and accurate.
D bears the burden of establishing he has qualified privilege
Losing a Qualified Privilege
- Malice - if D’s primary motive is something other than furthering the interest justified by the privilege
- exceeding the scope of the privilege
- does not believe the truth of the defamatory communication.
Burden of P who is a Public Official or Public Figure in Defamation
D acted with malice
Public Official - Defined
A government official who appears to have substantial responsibility over government operations. Police officers may generally fall in this area.
Public Figure - Defined
- Achieved pervasive fame or notoriety
- voluntarily injected himself into a particular public controversy and becomes a public figure as to the limited issues in the controversy
Subject matter - public concern
P is not a public official or public figure
P’s burden
showing of some degree of fault higher than strict liability,
presumably negligence.
Actual malice required for presumed or punitive damages
Private Plaintiff and Private subject matter - plaintiffs burden
The constitution does not require P prove actual malice to recover for presumed or punitive damages.
Punitive Damages in Defamation - Requirements
In any case where P establishes that D acted with Malice
Where common law (strict liability) still applies - private plaintiff sues as to a matter that is not a public concern.
Parodies, Cartoons, and other Satirical Utterances
USSC holds that such speech cannot be actionable as intentional infliction of emotional distress unless they contain false statements of fact made with malice.
