Defamation Flashcards
Defamation Defined
1) The D must make a defamatory statement specifically identifying the P 2) There must be publication of that statement 3) Must be damage to the reputation of the P
Defamatory Statement
A statement is considered to be defamatory when it adversely affects reputation. Mere name calling is not sufficient. An allegation of factual representation that reflects negatively on a trait of character (loyalty, competency, morality). Must specifically identify P either by name or by any other identifiable characteristics. Can only be defamation of a living person, not a deceased person
Publication
Statement must be shared with someone other than P; does not have to be widespread. Does not have to be intentional, can be negligent or inadvertent
Libel
Defamatory statement is written down, printed, or recorded in some other fashion. Damages are presumed.
Slander
Defamatory statement that is oral or spoken. Have to offer evidence of some damage (economic harm)
Slander per se
Very hurtful slander is treated like libel for purposes of damages; get presumed damages. Any statement that falls within four topics: a statement relating to the P’s business or profession, a statement that indicates the P has committed a serious crime, a statement that imputes unchastity to a woman, a statement indicating the P suffers from a loathsome disease
Defenses
Consent, Truth, Privileges
Truth
D can show that the statement about P is true; and truth will defeat the claim. D bears the burden of proof
Absolute Privilege
An absolute privilege is normally conferred based on who the D is or D’s status. Spouses, government officials in conduct of their official duties. Judicial context: privilege is extended not only to the judge but also to witnesses and lawyers- nothing said in court can be used for a defamation suit. Legislative and executive branch
Qualified Privilege
Based on the situation that gave rise to the speech. Arises when there is a public interest in encouraging candor: references and recommendations and statements made to the police. Requirements: must have a reasonable and good faith basis for what was said and must confine to material that is relevant to the circumstances
Statement that bears on a matter of public concern
Public concern: of newsworthy caliber. 2 elements are added when there are 1st amendment values at stake: falsity (P must show that the statement is inaccurate) & fault
Public Concern- Proving Fault: Public Figure P
Must show constitutional malice; that the D either knew the statement was false and made it anyway or published it recklessly without any effort to investigate its accuracy
Public Concern- Proving Fault: Private Figure P
Must show negligence; sufficient to show the D disseminated the falsehood negligently; did not act as a reasonably prudent person to investigate whether it was true
