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Torts > Defamation > Flashcards

Defamation Flashcards

1
Q

What is Defamation?

A

Injury to a persons reputation

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2
Q

Common Law Elements of Defamation

A
  1. Defamatory Statement,
  2. Reference to the ∏,
  3. Pub. by ▵ to 3d Pers. &
  4. Damage to ∏’s Reputation
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3
Q

What is a defamatory Statement?

A

Allegation of fact that harms rep. of ∏ by reflecting negatively on a char. trait

  • Insults or name calling = NOT defamatory
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4
Q

Reference to Plaintiff

A

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.
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5
Q

Publication by Defendant to Third Person

A

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.
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6
Q

Damage to Plaintiff’s Reputation

A

Whether damages are req. for ∏ to succeed depends on type of defamation alleged (libel, slander or slander per se)

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7
Q

Libel

A

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
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8
Q

Slander

A
  1. Defamation
  2. Published in some fleeting form (spoken words or sounds, sign lang., gestures)
  3. Special damages - Must be econ. harm for ∏ to prevail in a slander action that is not based on a slander per se
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9
Q

Slander Per Se

A

Damages Presumed - 4 Kinds of slander per se that ∏ doesn’t need to show damages to succeed in defamation action

  1. Crimes of Moral Turpitude - Statements accusing ∏ of crimes of moral turpitude
  2. Loathsome Disease - St. alleging that ∏ suffers from venereal disease or other loathsome disease
  3. Sexual Misconduct - St. imputing serious sexual misconduct to the ∏ (Gender Specific - Only applies to women)
  4. Adversely Reflects on One’s Conduct in Business, profession, Trade, or Office - St. adv. reflecting on a persons fit. to conduct their bus.
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10
Q

First Amendment Privilege (Constitutional Requirements)

When do Constitutional issues arise in regard to defamation?

A

Const. issues w/ defamation arise when the def. refers to a pub. figure or involves a matter of pub. concern

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11
Q

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?

A

Const. req. ∏ to prove 2 additional elements when defam. refers to pub. figure or deals w/ matter of pub. concern. ∏ must show:

  1. 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)
  2. 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.
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12
Q

First Amendment Privilege (Constitutional Requirements)

Private indiv. brings defamation action

A

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
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13
Q

Defamation Defenses

A
  1. Consent
  2. Absolute Priv.
  3. Truth
  4. Qualified Priv.
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14
Q

Defense - Consent

A

(Complete Defense) - ∏ consents to the publication

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15
Q

Defense - Absolute Privilege

A

Can’t be Lost - Based on the state or identity of the speaker

  • Motive of speaker is irrelevant
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16
Q

Defense - Absolute Privilege

Categories

A
  1. Husband & Wife - Any co. b/w H & W is absolutely Priv.
  2. Judicial Proceedings - Judges, layers, parties, witnesses have abs. priv. for any statements made during a judicial proceeding, regardless of the motives for these statements
  3. Legislative Proceedings - Statements made by leg. while acting in leg. capacity are abs. priv.
  4. Gov’t Officials - Statements made by gov’t officials in the course of their position as gov’t officials are abs. priv.
  5. Compelled Broadcasts - One who is req. by law to pub. a defamatory matter is abs. priv. to publish it
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17
Q

Defense - Qualified Privilege

A

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
18
Q

Defense - Qualified Privilege

Forefiture of Qualified Priv.

A

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.
19
Q

Defense - Qualified Privilege

Forefiture of Qualified Priv. - Actual Malice

A

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
20
Q

Defense - Qualified Privilege

Forefiture of Qualified Priv. - Ulterior Motive

A

Qual. Priv. forfeited if prim. purp. of st. is something other than protecting the int. for which the priv. is given

21
Q

Defense - Qualified Privilege

Forefiture of Qualified Priv. - Excessive Publication

A

▵ 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.
22
Q

Defense - Qualified Privilege

Categories of Qualified Privilege

A

Arises in socially useful contexts ➞ potentially defam. st. is relevant to some socially useful purpose

  1. Report of Public Proceedings - Court cases, legislative hearings
  2. Protection of Publisher’s Interest - Qual. Priv. to act for the protection of publisher’s int. (protection of one’s prop. or reputation)
  3. 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 ▵
  4. 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.
  5. 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
23
Q

What are the steps to analyzing a defamation claim?

A
  1. Determine if the communication is defamatory
  2. Evaluate pleading issues
  3. Evidence of Publication
  4. Determine what type of defamation it is
    • Libel or slander
  5. Determine if common law priv. are applicable
  6. Analyze any first amendment issues
24
Q

Can the tort claim for defamation survive death?

A

No, the dead do not have defamation claims

25
Q

How can a plaintiff assert defamation when the plaintiff is not named in the published statement?

A

The plaintiff must prove that it is of or concerning her

26
Q

What is the limit on scope of defamation?

A

It only applies to identifiable persons

  • If said about group, not defamation
27
Q

What is publication in defamation?

A

D intentionally or negligently permitted someone other than the P to come into contact with the defam. statement

28
Q

What are the elements of publication?

A
  1. D intentionally or neg. permitted
  2. A third party to hear the defamation
29
Q

What is the republication rule?

A

Others who repeat the defamation will be liable for defamation

30
Q

What is the effect of slander per se?

A

P doesn’t have to prove special damages, they are presumed

31
Q

In a defamation case, what does the P have the burden to prove ?

A

That the communication was false

32
Q

What is the effect of an absolute privilege on a defamation claim?

A

D will not be liable for defamation

  • It is a safe harbor for defamation
33
Q

When does the absolute privilege for defamation occur?

A
  1. Co. b/w spouses
  2. Statements made on the floor of a legislature
  3. Statements made among high ranking gov’t officials
  4. Statements made during judicial proceedings
34
Q

When do qualified privileges for defamation apply?

A
  1. Bus. Assoc., meaning members of a group with a common interest AND
  2. Providing a reference in ajob setting
35
Q

When does a D lose an otherwise available qualified priv. for defamation ?

A
  1. When D excessively publishes
  2. When D knows the statement is false OR
  3. When D is reckless as to the truth or falsity of the statement
36
Q

What must a claim est. if defamation relates to a pub. official in capacity as a pub. official?

A
  1. Clear and convincing evidence
  2. D knew info was false or recklessly disregarded the truth or falsity of the statement
37
Q

Who are considered Public Figures for Defamation?

A
  1. All purpose public figures - household names
  2. Limited public figure - injects themselves into a controv. trying to have an affect on the outcome
38
Q

What must a claim est. if defamation relates to a pub. figure in capacity as a pub. figure

A
  1. Clear and convincing evidence
  2. D knew the published info was false or recklessly disregarded the truth or falsity of the statement
39
Q

What are the different standards of proof for defamation claims?

A
  1. Public official/Public Figure - Malice
  2. Private Person & Matter of Pub. Concern - Negligence
  3. Private Person & Matter of Only Private Concern - Publication only
40
Q

What are the damages available for defamation?

A
  • General Damages are presumed
  • Special Damages must be shown
    • Unless defamation is libel or slander per se

Torts (18 decks)

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