Defamation Flashcards
Defamation (definition + rule paragraph)
Defamation: A defendant is liable for defamation for any defamatory statement of fact (not opinion) that is published to a third person who understood the message to refer to plaintiff, which causes plaintiff reputational or actual economic damage. If the message is oral, it is either slander. Written defamation is libel.
In Florida defamation requires a defamatory statement against an ascertainable specific party, fault of defendant, falsity of the statement, publication, actual damages, and defamatory intent (burden changes depending upon circumstances).
Slander (defined)
Slander is an oral defamatory statement against the party.
Slander per se (defined + Florida standard)
Florida does not recognize slander per se, which would automatically give damages to any comment impugning the party’s profession, trade, chastity if a women, or horrendous disease (leprosy or venereal).
Fact vs. Opinion
The defamatory statement must be a statement of fact rather than an opinion.
Defamation (Public Officials)
A public official, if speaking in her official capacity, has an immunity for statements made. A public person in a public matter must prove that the statement is false and indicates gross negligence on the part of the speaker, or a reckless disregard for the truth or knowledge that the statement is false.
Defenses to Defamation
Defenses: (1) truth; (2) absolute privilege (legislature, judge, attorney, witness, juror);
(3) qualified privilege (matter of interest to recipient; matter of public interest)
Libel / slander per se:
Libel / slander per se: action without proof of special harm in certain situations
Defamation per se: libel per quod
Defamation per se: libel per quod – apparent on face will injure plaintiff’s reputation
a. If not apparent on face, plaintiff must plead additional, extrinsic facts
b. Florida: libel per se / libel per quod:
i. Florida does not distinguish
ii. Must prove actual damages against media defendant unless prove actual
malice
Invasion of privacy (Causes of Action)
Invasion of privacy
a. Intruding into plaintiff’s seclusion
b. Appropriating identity or likeness for commercial advantage
c. Public disclosure of private facts
d. Portraying plaintiff in false light
i. FLORIDA DOES NOT RECOGNIZE FALSE LIGHT
Invasion of Privacy (Defense)
Defenses:
(1) truth;
(2) consent;
(3) privilege;
(4) legitimate public interest
Elements of Defamation in FLORIDA
Fred Flinstone Is Pebbles Flintston’s Dino Dad
False statement of
FACT (as opposed to opinion);
Identification of plaintiff as the subject;
Publication to a third person;
Fault by the defendant
Defamatory effect from the statement
Damages to the plaintiff
Defamation Standard of FAULT
Private Persons = Negligence or reckless disregard for the truth
Public Figures = Express Malice
Fact vs. True Statement
A defamatory statement must be a “false statement of fact” that is not an opinion but rather a statement describing “the way things are.” The truth or falsehood of the ‘fact’ only matters for the purposes of defense to the allegation because truth is an absolute defense to defamation.
Malice + Qualified Privilege + MAJORITY vs. FLORIDA
There is a qualified privilege against defamation if the speaker is discussing a PUBLIC figure. Individuals are allowed to say “negative” things about public figures w/out being sued.
HOWEVER, the privilege WILL NOT APPLY if the speaker/writer acted with MALICE.
The MAJORITY follows the NY Time actual malice standard: Knowledge that the statement is untrue, or reckless disregard for the truth.
FLORIDA follows the common law rule of EXPRESS MALICE: The speaker/writer intended to injure the plaintiff.
The MAJORITY does NOT include the elements of falsity and fault in the definition of defamation. Those elements only apply when the subject matter is a matter of public concern.
FLORIDA ALWAYS requires falsity and fault as elements, regardless of the subject matter.
FALSITY AND FAULT
The MAJORITY does NOT include the elements of falsity and fault in the definition of defamation. Those elements only apply when the subject matter is a matter of public concern.
FLORIDA ALWAYS requires falsity and fault as elements, regardless of the subject matter.
