Defamation Flashcards
Defamation - 7 General Elements
- Defamatory message
- Certain pleading problems
- Publication of the message
- Type of defamation
- Damages
- Common Law Defenses
- Constitutional Issues
Defamatory Message - general definitions
A message that lowers the P’s esteem in community or discourages persons from associating with him. Defamatory message holds a P up to hared, ridicule, contempt, or scorn.
Defamatory Messages - Statements of Opinion
Generally only statements of fact are actionable. However, expressions of opinion which imply knowledge of certain facts may be sufficient if interpreted as fact by a reasonable person.
Defamatory Message - Per Se v. Per Quod
Per Se - apparent on the face of message that it will injure the P.
Per Quod - requires additional extrinsic facts to have defamatory meaning. These must be plead by P.
Defamatory Message - Role of Judge and Jury
Judge decides whether a communication could be understood as defamatory. Jury decides whether it was defamatory in case before it.
Pleading problems
The party suffering must have been a living person or an existing organization.
Pleading problems - Statements about third parties
The statement must defame the plaintiff directly. Statements about third parties, even those closely related, are not actionable unless they also defame P.
Pleading problems - Statements about groups
Liability varies according to size of the group and nature of message. If statement concerns all members of a large group, generally no liability. If statement concerns a small group, each member may be sufficiently identified.
Publication - General Definition
Any spoken or written statement. P must prove that some reasonable third person received it and understood it to refer to P.
Publication - Republishers
Republishers may also be liable to P and may also increase the original publishers liability where such republication is foreseeable.
Publication - Participants
All persons who participate in originating a defamatory message are liable as primary publisher. (Editors, publishing companies, authors). Vendors and distributors are only liable if they knew or should have known of defamatory statement.
Type of Defamation - Libel
A defamatory message embodied in any relatively permanent form. (sound recording, video, picture, etc)
Type of Defamation - Libel Per Quod
Not apparent on its face, p must plead extrinsic facts. Large majority of jdx require proof of special damages for libel per quod.
Type of Defamation - Slander
Traditionally spoken defamation. Also, non permanent forms.
Type of Defamation - Slander Per Se - Gen Definition
Slander so hurtful that it was presumed that P suffered damages from its utterance.
Type of Defamation - Slander Per Se - 4 types
- Commission of a crime of moral turpitude.
- Allegation of loathsome disease.
- Characteristics incompatible with P’s business, profession, or office.
- Unchastity of a woman. More recently, serious sexual misconduct by both sexes
Damages - Three Different types
- Pecuniary - quantifiable monetary losses.
- General - non pecuniary - humiliation, loss of friends…
- Punitive - to punish or deter
Damages - Pecuniary
Proof of Pecuniary Damages are necessary to establish a prima facie case in slander and libel per quod (in some jdx).
Damages - General Damages
Jury is permitted to presume that P suffered general damages based on injury to reputation. No proof need be offered if the form of defamation is slander per se or “ordinary” libel (not per quod).
Damages - Punitive
P must show malice to recover.
Defenses - Truth
Traditionally, the D had to prove statement was true. Now, falsity is part of prima facie case unless there is a private plaintiff w/ matter or private concern.
Defense - Absolute Privilege - 6 types - must be proven by D.
- Legislator’s statements uttered while on floor or committee.
- Participant in judicial proceedings
- Statements in judicial proceedings (complaints, pleadings, discovery, etc).
- Statements of policy making officials in executive branches of state or fed government in course of duty.
- Spouse to spouse.
- Broadcasters compelled to permit third persons to use facilities are not liable for statements by third parties.
Defenses - Qualified Privilege - Defined
Qualified privileges are defenses but can be lost. D bears burden. Lost if D acts with malice, exceeds scope or privilege, does not believe truth of statement.
Defenses - Qualified Privilege - Types
- Statements reas. necessary to protect or advance D’s legit. interest.
- D who communicates on matter of interest to recipient.
- D who communicates on matter o public interest to one empowered to protect that interest.
- Criticism of a matter of public interest.
- Reports of public hearings.
Defense - Consent
General consent principals apply.
Constitutional Issues - Public Figures/Officials
P must establish that D acted with malice (NYTimes v Sullivan. Malice is knowledge of falsity or reckless disregard for its truth. Must be proven by clear and convincing evidence.
Matters of private concern may eliminate need for public figures to prove malice. Look to degree of dissemination.
