Defamation

Question 1

Elements of defamation

Answer 1

“must make a defamatory statement identifying the π”
must be published
must cause damage to π’s reputation

IF MATTER OF PUBLIC CONCERN : burden is on the π to also show

a. falsity
b. if public figure– π must show actual malice (knowledge or reckless disregard)
c. if private figure – π must prove negligence if it is a matter of public concern

Question 2

First element of defamation

Answer 2

a. must make a defamatory statement identifying the π
i. anything tendency to adversely affect reputation.
ii. mere insults are not defamatory –
1. must have a factual allegation that reflects negatively on character
iii. must identify the π—can do so without using their name.

Question 3

Second element of defamation

Answer 3

b. “publication” – must have harm to your reputation
i. saying horrible things to you in private ≠ hurting your reputation
ii. this requirement is de minimis—∆ must only share the statement with one other person
iii. publication need not be deliberate. can be through negligent sharing.
1. but not strict liability. just bc it gets shared doesn’t mean it was published. for ex someone wire taped your office.
iv. primary publishers and author/speaker are both liable. sellers of the paper/ tape is liable only if he knows/should know of the defamatory conduct.

Question 4

Third element of defamation

Answer 4

c. “damage” to πs reputation – presumed for any factual allegation that has a tendency to adversely affect reputation EXCEPT FOR slander not falling into a slander per se.

i. libel presumption – where defamatory statement is written down/ captured on permanent basis
1. damage is presumed – π can get to jury without showing damage

ii. slander—oral or spken statement
1. some slander cases you have a presumption. “slander per se” four categories:
a. any statement relating to π’s business or profession
b. statmenet that π commited crime of moral turpitude– any crime of violence or lying
c. statement imputing unchastity to a woman.
d. statement that a π suffers from a loathesome disease: leprosy or VD

2. other slander, you DO have to prove damage to get to a jury

Question 5

Affirmative Defenses to Defamation

Answer 5

Consent, Truth, Privileges (absolute privileges or qualified privileges)

Question 6

Absolute privileges to defamation

Answer 6

i. spouses. defamatory statements made to spouses.

ii. officers of the government in carrying out their jobs—congressman saying my opponent has syphilis.
1. in the exam, it will come up in the judicial context. it includes witneses and lawyers. lawyer can say nasty things about others bc of wrong inference, wrong info from clients.

Question 7

Qualified privileges to defamation

Answer 7

i. a public interest in encouraging candor. policy: we want people to talk candidly for fear that they’ll be sued for defamation
for ex:

1. letters of rec. from former landlord, employer, creditors etc.
2. statements made to investigating police
3. defense of own reputation

ii. qualified priveleges are lost if malice is shown– malice: knowledge it’s not true or reckless disregard
reasonable mistake maintains the privilege: for ex, telling police i confused person in apartment 4c with 4g.

iii. must confine yourself to relevant material
1. cant throw in “sarah has leprosy” in a letter of rec
2. it’s a QUALIFIED privilege.
3. for a qualified privilege to apply, the statement mst be relevant to the interest being protected (like the interest of encouraging candor).