Defamation

Question 1

DEFAMATION

GOSSIP CASES!

Three Elements

Answer 1

Three Elements

1. A defamatory statement about plaintiff.
2. Publication of the statement
3. Damages - Depends on type of statement

Question 2

Defamation

Element ONE

A defamatory statment about the plaintiff

Answer 2

Defamatory means that it adversely affects plaintiff’s reputation. (a) It must be an assertion of fact, (b) name-calling or opinion is not enought.

Plaintiff must be identified. (a) Plaintiff is not identified if plaintiff is part of a large group that is being defamed, but is identified if plaintiff is part of a small group. (b) Plaintiff must be alive at the time the statement is made. (c) A corporation may be a plaintiff.

Question 3

Defamation

Element TWO

Publication of Statement

Answer 3

(1) There must be a communication to a third person(s) (not plaintiff) who understands the statement.
(2) Only intent to publish is required (not necessarily intent to defame) so even if defendant had no idea what she was saying was false, if she intended to publish the statement, she may be liable for defamation. Defendant can also be liable if she was negligent in her publication.

A republisher is liable just the same as a primary publisher.

Question 4

Defamation

Element THREE

DAMAGES

Depends on type of statement…

Answer 4

(1) Libel

Definition - Written or otherwise permanent

Damages are presumed in libel but you can prove damages and get even more money.

(2) Slander

Definition - spoken defamatory. A plaintiff will not get punitive damages for slander.

Damages are presumed if slander is in one of four “slander per se” categories (CLUB)

1. committing a crime of moral turpitude (assault, larceny, etc)
2. Suffering from a loathsome disease
3. Unchasity if plaintiff is a women, or
4. something that reflects badly on his business or profession

Damages - only need to proven if the slanderous statement doesn’t fall into one of the “CLUB” categories. Prove actual damages by showing economic harm (getting fired, losing out on a contract).

Question 5

Defamation

MICHIGAN DAMAGES

Answer 5

1. Fault. Plaintiff must prove that the defendant acted with fault in every case (at least show negligence. An honest and reasonable mistake is a defense in MI).
2. For both libel and slander, one needs to prove that the statement had to do with plaintiff committing a crime or plaintiff being unchaste (regardless of whether plaintiff is a man or woman) if it doesn’t fall into one of those to “C” or “U” categories above, plaintiff must prove actual damages
3. One can get actual damages if she proves actual malice but not punitive damages.

Question 6

Defamation in cases of Public Concern

Must prove TWO extra elements

Answer 6

(1) Falsity - in an ordinary case, plaintiff does not have to prove falsity but defendant can use it as a defense.
(2) Fault
(a) Public figure cases - a public figure is someone who has pervasive fame or notoriety either generally or in a particular public controversy - must show malice aka def made the statement w/knowledge of its falsity or w/reckless disregard.
(b) Private figure but Public Concern - Pltf must how negligence on the part of the defendant. Damages are limited to actual injury. However, damages are presumed if malice is present.

Question 7

Defamation

REPUTATION

Answer 7

Reputation can be brought in to a defamation claim for two reasons:

(1) to prove damages
(2) to prove liability

Question 8

Defamation

AFFIRMATIVE DEFENSES

Answer 8

1. Consent
2. Truth
   - This is a defense in matters of purely private concern where plaintiff is not required to prove falsity as part of its prima facie case. If the statement is factually accurate, there is NO defamation.
3. Privileges
   (a) absolute - Statements made during judicial, legislative, and executive proceedings are absolutely privileged. And statements between spouses are too.
   (b) Qualified privilege - whenever candor is encouraged. Speakers must have reasonable belief that statement is accurate and only discuss matters relevant to the situation