Defamation Flashcards
permits P to recover damages when injured by statements that are false and defamatory
Defamation
Libel:
Defamation which is written or, absent any statute to the contrary, statements that are memorialized in some tangible format (film, videotape, You-Tube)
Slander
Defamation which is spoken or which consists of silent gestures
P did not have to prove falsity, i.e., D had to prove truth
P did not have to prove any particular degree of fault, i.e., D liable whether intentional, reckless, or negligent
In certain instances, P did not have to prove special damages but could recover presumed damages alone
At common law,
Defamation
A false and defamatory statement of fact (S)
Of and concerning P; and
Publication of S to third person who understands its defamatory meaning; and
In most cases, some degree of fault on part of D; and
Causation; and
Damages (in most cases special damages required)
Elements
Today, most jurisdictions limit the right to recover presumed damages to specific types of defamation (whether libel or slander) or to defamation of specific categories of people or concerns, and in all other cases, require that special damages be pleaded and proved
To recover punitive damages, most jurisdictions require a showing of actual malice, i.e., a reckless disregard for truth; some jurisdictions allow a showing of malice akin to spite
Damages Today
Because defamation was considered an intentional tort, P could recover presumed damages where:
Statement was written (libel) and libelous on its face (per se), i.e. no outside evidence was required to identify P or establish how libelous (per quod)
Statement was spoken (slander) and accused P of committing a serious crime, or had a loathsome disease or was incompetent to practice a chosen business or engaged in serious sexual misconduct.
In all other cases, i.e., libel or slander per quod, P was required to show special damages, e.g., lost wages or medical expenses
Damages at Common Law
At common law, D had burden of proving truth
Today, in some instances, P has burden of proving falsity
No action will lie for trivial inaccuracies
No action will lie as long as gist is true, i.e., substantially true
False
Must be able to show a provably false assertion
Opinion is not fact
Fiction is not fact
Statement of Fact:
Statement tends to lower P’s reputation in estimation of community or deter others from associating with P– exposes them to hatred, contempt, or aversion
Defamatory
Depends on the temper of the times.
Determination based on examination of “whole publication.”
Whether S is capable of defamatory meaning is a question of law
Where capable of two meanings, question of fact whether defamatory meaning conveyed
Defamatory
S specifically identifies P and S is defamatory on its face
Defamation per se
Where S’s defamatory meaning is not apparent on its face requiring P to prove extrinsic facts to provide nexus
Defamation per quod
Extrinsic facts which establish Ss were spoken about P,
Defamation per quod
Colloquium
Extrinsic facts which establish Ss are defamatory.
Defamation per quod
Inducement
Defamatory meaning conveyed based on colloquium and inducement,
Defamation per quod
Innuendo
In some jurisdictions damages are not presumed in an action for _____ ___ ______; P must prove special damages.
libel per quod
May be defamed by remarks as to its financial condition, honesty, integrity.
Business Entity
Notwithstanding 1st Amendment considerations, passages in works of fiction may be basis for a defamation claim where
plausible believable false statement of fact; and
reasonable readers likely to know it was P
Works of Fiction and Disclaimers
Generally not actionable subject to survival statutes; Relatives may have a colorable claim where defamatory S reflects directly on them.
Defamation of Dead
D must convey defamatory S to someone other than P who understands its defamatory meaning.
Disclosure without knowledge of defamatory meaning generally not actionable
Publication
___________ self-publication generally not actionable
Compelled
One edition of book, newspaper, broadcast is single publication regardless of number of copies; Also applies to websites which may constantly be changing
Single Publication Rule
Will be liable if repeats defamatory S
Republisher
Generally not liable unless exercises editorial control
Distributor
Under Federal Communications Decency Act, content service providers generally are not liable if follow safe harbor provisions; has been extended to webloggers, website operators, those who link content
Defamation and the Internet
To determine whether a S of fact, must look at specific language, whether S is verifiable, the general context of S, and broader context in which S appeared
Excludes “Puffery”– mere sales talk
Cannot hide behind casting remarks as “in my opinion” if what follows are defamatory statements of fact
S of Fact v. Opinion:
One who has obtained such pervasive fame or notoriety that (s)he becomes one for all purposes
One who is a _______ _______ with respect to the subject matter of the defamatory statement
public figure
One who is drawn into a particular public controversy – even without purposeful action
Limited Public Figure
One who has a position in government of apparent importance and control that public has an independent interest in qualifications and performance
Public Official
Applies also to former _______ ______ if statement relates to official performance while in office
Public Official
P has burden of proving
S was false
Publication with Actual Malice
Public Figure/Public Official/
Applies when P is
A public figure in all respects; or
A public or limited public figure in the context of the Statement made and context is a matter of public concern; or
A public official and either statement is made in the context of a matter of public concern involving public official or is made in the context of qualifications for office past or present
Public Figure/Public Official/
Knowledge that statement is false; OR
Reckless disregard for truth or falsity; OR
Subjective awareness of probable falsity
Actual Malice:
requires showing of ill will or spite. Not sufficient to establish actual malice
Express/Common Law Malice
Burden
Public Figure/Public Official/
Requires clear and convincing evidence. Question of law for the court
May recover presumed and punitive damages, along with any actual damages
Damages
Public Figure/Public Official/
A P’s whose reputation is so bad may be entitled to nominal damages at most
Libel Proof Doctrine
P must prove falsity and D must have acted at least negligently
When P is a private person and statement made in the context of a matter of public concern
Reasonable grounds for belief is a defense
If proves only negligence, P limited to recovery of actual damages, including mental suffering
Private Person/Public Concern
If can show actual malice, then P may be awarded presumed and also punitive
Private Person/Public Concern
P need not prove falsity
May recover presumed and punitive (even without proof of actual malice)
Majority requires at least negligence to recover actual damages
Reasonable grounds for belief is a defense
Matter of Private Concern: Court will look at expression, content, form, and context as revealed by whole record
Private Person/Private Concern
May limit right to recover if D publishes a retraction. Generally only apply to media defendants
Retraction Statutes
Provides complete immunity no matter what D knew or why D made statement
Absolute Privileges
Ss made during judicial proceedings pertinent to issues.
Ss made during any other public and private hearing involving exercise of judicial or quasi judicial power
Ss made before commencement of judicial proceedings if made in connection with possible litigation
Ss made post-litigation which discuss outcome of litigation, future strategies, or are generally responsive to inquiries.
Ss made during legislative proceedings
Ss made in connection with executive branch
Communications between spouses
Communications consented to by P
Public communications required by law
Absolute Privileges
Generally enjoyed by employers, credit-reporting agencies, employees in the course of an investigation.
Qualified Privileges
Recipient and speaker have a common interest
Risks posed by disclosure
Whether information solicited or volunteered
Qualified Privileges
Factors
Will be lost if D acted with common-law malice or where there is excessive publication
Qualified Privileges
Generally cannot waive intentional or reckless defamation
Releases
Applies to anyone (not just media D) who is accurately reporting Ss made during an official action or proceeding or at a meeting open to the public that deal with a matter of public concern
Applies even if “reporter” knows the Ss to be false
May be referred to “neutral reportage
The “Reporter’s Privilege”
Common law defense which protected good faith expression of defamatory opinion on matters of public interest so long as they were based on true or privileged facts.
Fair Comment
