Defamation Flashcards
What is Defamation?
Injury to a persons reputation
Common Law Elements of Defamation
- Defamatory Statement,
- Reference to the ∏,
- Pub. by ▵ to 3d Pers. &
- Damage to ∏’s Reputation
What is a defamatory Statement?
Allegation of fact that harms rep. of ∏ by reflecting negatively on a char. trait
- Insults or name calling = NOT defamatory
Reference to Plaintiff
Statement must explicitly ID ∏ (“of or concerning” ∏)
- ∏ must be alive
- Corp. may be defamed but only if st. prejudices the corp. in its course of bus. or deters others from dealing w/ the corp.
Publication by Defendant to Third Person
Seen or heard by someone other than the ∏, Must be
- Intentional - Intent to publish, not intent to defame OR
- Negligent - Pub. doesn’t have to be intentional, Negligent pub. is suff.
Damage to Plaintiff’s Reputation
Whether damages are req. for ∏ to succeed depends on type of defamation alleged (libel, slander or slander per se)
Libel
Published in durable form (written words, film, CD, DVD, radio show, Blogging)
- Damages Presumed - ∏ in libel case doesn’t need to show damages to succeed in a libel action
Slander
- Defamation
- Published in some fleeting form (spoken words or sounds, sign lang., gestures)
- Special damages - Must be econ. harm for ∏ to prevail in a slander action that is not based on a slander per se
Slander Per Se
Damages Presumed - 4 Kinds of slander per se that ∏ doesn’t need to show damages to succeed in defamation action
- Crimes of Moral Turpitude - Statements accusing ∏ of crimes of moral turpitude
- Loathsome Disease - St. alleging that ∏ suffers from venereal disease or other loathsome disease
- Sexual Misconduct - St. imputing serious sexual misconduct to the ∏ (Gender Specific - Only applies to women)
- Adversely Reflects on One’s Conduct in Business, profession, Trade, or Office - St. adv. reflecting on a persons fit. to conduct their bus.
First Amendment Privilege (Constitutional Requirements)
When do Constitutional issues arise in regard to defamation?
Const. issues w/ defamation arise when the def. refers to a pub. figure or involves a matter of pub. concern
First Amendment Privilege (Constitutional Requirements)
What must Plaintiff prove if the defamation refers to a public figure or deals with a matter of public concern?
Const. req. ∏ to prove 2 additional elements when defam. refers to pub. figure or deals w/ matter of pub. concern. ∏ must show:
- Defamation is False AND
- Burden of Proof = ∏ - Shifts burden of proof from ▵ (truth as complete def.) to the ∏ (falsity becomes an element of the COA)
- Fault by the ▵
- Pub. Official or Figure = Malice - Malice on part of ▵ must be proved
- Knowledge that statement is false OR
- Reckless Disregard - ▵ in fact entertained serious doubts as to the truth of her pub.
- Pub. Official or Figure = Malice - Malice on part of ▵ must be proved
First Amendment Privilege (Constitutional Requirements)
Private indiv. brings defamation action
Private Person = Negligence
- In defam. actions brought by priv. persons that involve matter of pub. concern,
- ∏ only need to prove neg. by the ▵ regarding the falsity of the statement
Defamation Defenses
- Consent
- Absolute Priv.
- Truth
- Qualified Priv.
Defense - Consent
(Complete Defense) - ∏ consents to the publication
Defense - Absolute Privilege
Can’t be Lost - Based on the state or identity of the speaker
- Motive of speaker is irrelevant
Defense - Absolute Privilege
Categories
- Husband & Wife - Any co. b/w H & W is absolutely Priv.
- Judicial Proceedings - Judges, layers, parties, witnesses have abs. priv. for any statements made during a judicial proceeding, regardless of the motives for these statements
- Legislative Proceedings - Statements made by leg. while acting in leg. capacity are abs. priv.
- Gov’t Officials - Statements made by gov’t officials in the course of their position as gov’t officials are abs. priv.
- Compelled Broadcasts - One who is req. by law to pub. a defamatory matter is abs. priv. to publish it
Defense - Qualified Privilege
Based on the circ. or occasion of the remarks (where there is a pub. int. in encouraging candor)
- This priv. will be lose if abused
Defense - Qualified Privilege
Forefiture of Qualified Priv.
Forfeited if abused (malice, ulterior motive or excessive pub.)
- Ulterior Motive - Qual. Priv. forfeited if prim. purp. of st. is something other than protecting the int. for which the priv. is given
- Excessive Publication - ▵ will lose qual. priv. if the st. is not w/in the scope of priv.
- Made to persons to whom pub. not reas. nec. OR
- More Damaging than Reas. Nec.
Defense - Qualified Privilege
Forefiture of Qualified Priv. - Actual Malice
Actual Malice = Knowledge or Reckless Disregard
- ▵ must have reas. basis for the st. made
- Priv. lost if the ▵ knew the st. was false when made or acted in reckless disregard as to whether it was true
Defense - Qualified Privilege
Forefiture of Qualified Priv. - Ulterior Motive
Qual. Priv. forfeited if prim. purp. of st. is something other than protecting the int. for which the priv. is given
Defense - Qualified Privilege
Forefiture of Qualified Priv. - Excessive Publication
▵ will lose qual. priv. if the st. is not w/in the scope of priv.
- Made to persons to whom pub. not reas. nec. OR
- More Damaging than Reas. Nec.
Defense - Qualified Privilege
Categories of Qualified Privilege
Arises in socially useful contexts ➞ potentially defam. st. is relevant to some socially useful purpose
- Report of Public Proceedings - Court cases, legislative hearings
- Protection of Publisher’s Interest - Qual. Priv. to act for the protection of publisher’s int. (protection of one’s prop. or reputation)
- Protection of Recipient’s Interests - Qual. Priv. to act for the protection of the recipient’s int. (job ref., letters of rec. , credit reporting agencies)
- Key - St. was made in response to a request not vol. by the ▵
- Common Interest - Circ. lead any one of several persons having com. int. in a particular subj. matter correctly or reas. believe that there is info that another sharing the com. int. is entitled to know
- e.g. common prop, bus. and prof. int. as well as members of religious, fraternal and charit. assoc.
- Communication to One Who May Act in the Public Interest - St. made to pers. who has the power to act in the pub. int. (pub. official)
- E.g. private citizen reports a crime to the police or district attorney
What are the steps to analyzing a defamation claim?
- Determine if the communication is defamatory
- Evaluate pleading issues
- Evidence of Publication
- Determine what type of defamation it is
- Libel or slander
- Determine if common law priv. are applicable
- Analyze any first amendment issues
Can the tort claim for defamation survive death?
No, the dead do not have defamation claims
How can a plaintiff assert defamation when the plaintiff is not named in the published statement?
The plaintiff must prove that it is of or concerning her
What is the limit on scope of defamation?
It only applies to identifiable persons
- If said about group, not defamation
What is publication in defamation?
D intentionally or negligently permitted someone other than the P to come into contact with the defam. statement
What are the elements of publication?
- D intentionally or neg. permitted
- A third party to hear the defamation
What is the republication rule?
Others who repeat the defamation will be liable for defamation
What is the effect of slander per se?
P doesn’t have to prove special damages, they are presumed
In a defamation case, what does the P have the burden to prove ?
That the communication was false
What is the effect of an absolute privilege on a defamation claim?
D will not be liable for defamation
- It is a safe harbor for defamation
When does the absolute privilege for defamation occur?
- Co. b/w spouses
- Statements made on the floor of a legislature
- Statements made among high ranking gov’t officials
- Statements made during judicial proceedings
When do qualified privileges for defamation apply?
- Bus. Assoc., meaning members of a group with a common interest AND
- Providing a reference in ajob setting
When does a D lose an otherwise available qualified priv. for defamation ?
- When D excessively publishes
- When D knows the statement is false OR
- When D is reckless as to the truth or falsity of the statement
What must a claim est. if defamation relates to a pub. official in capacity as a pub. official?
- Clear and convincing evidence
- D knew info was false or recklessly disregarded the truth or falsity of the statement
Who are considered Public Figures for Defamation?
- All purpose public figures - household names
- Limited public figure - injects themselves into a controv. trying to have an affect on the outcome
What must a claim est. if defamation relates to a pub. figure in capacity as a pub. figure
- Clear and convincing evidence
- D knew the published info was false or recklessly disregarded the truth or falsity of the statement
What are the different standards of proof for defamation claims?
- Public official/Public Figure - Malice
- Private Person & Matter of Pub. Concern - Negligence
- Private Person & Matter of Only Private Concern - Publication only
What are the damages available for defamation?
- General Damages are presumed
- Special Damages must be shown
- Unless defamation is libel or slander per se
