Defamation Flashcards
What are the four elements of defamation?
- Defamatory language
- Of or concerning a living plaintiff (P need NOT be ID’d by name) with
- Publication (by the D, to a 3rd party), AND
- Damage to P’s reputation
What are the constitutional elements when defamation involves public concern?
- Falsity of the defamatory language
- Fault on the part of the defendant
(Elements - P must prove)
What level of fault is required for defamation when target is a public figure?
Defamation of a PUBLIC figure requires ACTUAL MALICE
(Actual Malice: D had knowledge that the statement was false, or made the statement with reckless disregard as to whether it is false)
What level of fault is required for defamation of private figures?
Defamation of a PRIVATE figure requires NEGLIGENCE
(Negligence: D did not act reasonably to verify the truth)
What types of statements are generally not defamatory? (2)
- Insults (not factual allegation)
- Statements of opinion (unless implicating factual basis)
When are opinions defamatory?
When they implicate a factual basis
What is the requisite intent for publication?
Intent to publish, not defame.
(N.B. Can be intentional, reckless, or negligent)
At common law, when do you have to prove special damages for defamation?
Slander not per se
What are special damages for defamation?
Actual (economic) damages to reputation
What is the core difference between slander and libel?
Slander is spoken; Libel is fixed permanently in a medium (e.g., written/recorded)
What is the NY RULE on when you have to prove special damages for defamation? (2 situations)
- Slander not per se
- Libel when (1) the statement does not fall into a slander per se category; AND (2) the statement requires additional evidence to make out defamatory impact
What are the three defenses to defamation?
- Consent
- Truth
- Privilege
What are the slander per se categories? (4)
Slanderous statements regarding P and:
- His business or profession;
- Crimes of moral turpitude;
- HER sexual activity (i.e., “Unchastity of a woman” category = stmt re: ANY sexual activity!); OR
- A loathsome disease (e.g., leprosy, venerial)
What are the two categories of privileges available as affirmative defenses to defamation?
- Absolute privilege
- Conditional/Qualified
What is absolute privilege against defamation?
(3 examples?)
Absolute privilege stems from the status of the defendant, e.g.,
- Spousal privilege
- Attorney-client privilege
- Officers of the three branches of government (interpreted broadly)