Defamation Flashcards
Defamation definition
The act of making untrue statements about another which damages their reputation
Types of defamation
1) Libel
2) Slander
Libel definition
Defamation in a written or other graphic/published form
Slander definition
Spoken defamation
Defamation Elements
1) published a written (libel) or spoken (slander)
2) false statement
3) that was defamatory
4) concenring the π
5) While acting with actual malice (if public figure) or nagligence (if private figure)
6) damages
Publication definition
When one person, in addition to the writer and the persond efamed, sees or hears teh material and that person understands the statement to be defamatory
Falsity
- an absolute defense
- Substantial truth” - what is the gist?
What do Court’s consider when assesing if something is an opinion
Courts consider
1) verifiability
2) precision of language
3) context
4) type of written speech
Defamation per se
- defamatory on its face (Ex: allegation of crim, racision, disease, etc.)
- Law presumes that reputation is damaged, so π can recover without proof of injury
Defamation per quod
Requires context to understand its defamtory meaning
-Ex: “I saw prof. sherwin and lady pearl on a date!” would only be defamatory if you knew they were both married
Quality of reputation
a reputation must be capable of being harmed.
Identification definition
others must be able to reasonably understand that the π is the one reffered to
how one may be identified
1) name
2) likeness
3) photograph
4) references taht would identify only one person
Actual Malice/Negligence standard
standard depends on whether the π is a public official, public figure or private figure
Private figure definition
Individuals who do not qualify as public officials/figures or limited-purpose public figures are private figures
Private Figure standard
∆ must only be negligent (failing to do that which a reasonable person would do in a simliar circumstance)
Negligence
- Failing to do that which a reasonable person would do under simliar circumstances
- Question of Fact
Public figure Standard
Actual Malice
Actual Malice
- Knowledge of falsity or with “reckless disregard for the truth”
- ∆ must have actual, subjective doubt about the truthfulness of the statement
types of Public Figures
1) Public Officials
2) Public Figures
types of Public figures
1) General Purpose Public Figures
2) Limited-purpose public figures
Public official definition
- anyone elected will qualify
- Other gov. officials will qualify if:
1) they have substnatial responsibility for a governmental conduct
2) public has an interest in the qualifications or performance
3) story is about the officials job responsibilities or performance
General Purpose Public Figures Definition
- Household Names
- Those who achieve such pervasice fame that they become public figures for all pruposes and in all context
General Purpose Public Figures Standard
Judged from perspective of specific community in which the story was published
Limited Purpose public figures definition
those who thrust themselves into the forefront of a particular public controversey
π must be actively seeking (volunatarily) to influence public opinion
Limited purpose public figure factors
1) whether the controvesey at issue is public in that the issue’s resolution would have widespread effect
2) the π has more than a trivial role
3) the alleged defamation is relevatn tot he π’s participation
Actual Malice Standard
Must be proved by clear and convincing evidence
Damages available for defamation
1) General damgaes
2) Special damages
3) punitive damages
General damages
- difficult to put a number on (hurt feelings, mental suffering, etc.)
- Question of fact
Special damages
- something you can put a number on (loss of employment, lost income, etc.)
- Must always be supported by evidence
Punitive damages
must establish by clear and ocnvincing evidence that ∆ acted with atual malice, fraud, or gross negligence
Types of Privileges
1) aboslute privilege
2) Qualified privilege
Absolute privilege definition
protects members of lawmaking bodies from charges of defamation for statements made “on the floor” of their legislative bodies, without regard for whether the words are stated in good faith.
Absolute privilege protects:
1) speech in a legislative or judicial forum
2) official communications or statements by public officials
3) communications between employer/employee
4) report of credit ratings
5) personal recomendations
Qualified Privilege
An individual may completely, fairly, and accuratly report what happens at a governmental or judicial proceeding
Retratction Statute definition
Laws that give ∆ an opportunity to correct, clarify, or retract stroy before suit can be filed
Does TEXAS have a retraction statute?
YES
Retraction statute requirements
- must be as prominent as alleged defamation
- typically requires taht a π request retraction before filing suit
SLAPP suit acronym
Strategic Lawsuits against Public Participation
SLAPP suit definition
Attempts by wealthy to silence press or critics through threat of litigation
- chilling effect on free speech
Does TEXAS have a ANTI-SLAPP statute?
YES (2011)
SLAPP Suit burdenof proof
- Allows ∆ to show that the suit regards a public concern
- If shown, the burden shifts to the π to show a prima facie case
Can fiction be libelous?
YES
Summary judgement elements
1) no issue of material fact; and
2) one party is entitled to judgement as a matter of law
Defamation is both a question of fact and law
1) Question of FACT: whether the statement was reasonably capable of a defamatory impression
2) Question of LAW: Whether the statemetn was actually understood as being defamatory
