Defamation

Question 1

Defamation, generally

Answer 1

Elements
• Defamatory language—diminishing respect, esteem, or goodwill toward P
• Of or concerning P—reasonable third party believes language refers to particular P
• Publication—intentional or negligent communication to third party; republication identifying original speaker and uncertainty as to accuracy of the statement still may satisfy this element
• Falsity (public concern)
o If statement relates to matter of public concern or P is a public figure, P must prove defamatory statement is false
o Private P suing on a statement that does not involve matter of public concern not required to prove falsity; D may prove truth as an affirmative defense
o Opinion only basis for defamation if implies knowledge of facts
• Fault
o Public figure—actual malice (D knows of falsity/reckless disregard of truth)
o Private figure/matter of public concern—D acted with fault; either negligence or actual malice
o Private figure/not matter of public concern—at least negligence

Question 2

Libel vs. slander

Answer 2

Libel—written, printed or otherwise recorded in permanent form; general damages that compensate P for harm to reputation (generally includes radio and television)
o Common law allowed recovery for presumed damages
o Libel per quod—if defamatory statement requires proof of extrinsic facts to show it is defamatory, P must prove either special damages or a category of slander per se

Slander—spoken word, gesture, or any form other than libel; special damages required; third party heard comments and acted adversely to P; usually, but not always, economic loss
• Slander per se—no special damages required if accused of committing a crime, conduct that reflects poorly on P’s trade or profession, loathsome disease, sexual misconduct; general damages then permitted as parasitic damages

Question 3

Constitutional limits on damages

Answer 3

• Public figure—can only recover actual proven damages
• Private person/matter of public concern—actual damages but if actual malice proven, punitive or presumed damages also permitted
• Private person/not public concern—general, including presumed, damages without proving actual malice

Question 4

Defenses

Answer 4

• Truth—complete defense
• Consent—cannot exceed scope
• Absolute privilege—for remarks during judicial/legislative proceedings, between spouses, or in required publications
• Qualified privilege—affecting important public interest, in the interest of D or third party; privilege is lost if abused; burden on D to prove privilege exists; burden on P to prove privilege abused and lost