Defamation

Question 1

permits P to recover damages when injured by statements that are false and defamatory

Answer 1

Defamation

Question 2

Libel:

Answer 2

Defamation which is written or, absent any statute to the contrary, statements that are memorialized in some tangible format (film, videotape, You-Tube)

Question 3

Slander

Answer 3

Defamation which is spoken or which consists of silent gestures

Question 4

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

Answer 4

At common law,

Defamation

Question 5

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)

Answer 5

Elements

Question 6

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

Answer 6

Damages Today

Question 7

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

Answer 7

Damages at Common Law

Question 8

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

Answer 8

False

Question 9

Must be able to show a provably false assertion
Opinion is not fact
Fiction is not fact

Answer 9

Statement of Fact:

Question 10

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

Answer 10

Defamatory

Question 11

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

Answer 11

Defamatory

Question 12

S specifically identifies P and S is defamatory on its face

Answer 12

Defamation per se

Question 13

Where S’s defamatory meaning is not apparent on its face requiring P to prove extrinsic facts to provide nexus

Answer 13

Defamation per quod

Question 14

Extrinsic facts which establish Ss were spoken about P,

Answer 14

Defamation per quod

Colloquium

Question 15

Extrinsic facts which establish Ss are defamatory.

Answer 15

Defamation per quod

Inducement

Question 16

Defamatory meaning conveyed based on colloquium and inducement,

Answer 16

Defamation per quod

Innuendo

Question 17

In some jurisdictions damages are not presumed in an action for _____ ___ ______; P must prove special damages.

Answer 17

libel per quod

Question 18

May be defamed by remarks as to its financial condition, honesty, integrity.

Answer 18

Business Entity

Question 19

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

Answer 19

Works of Fiction and Disclaimers

Question 20

Generally not actionable subject to survival statutes; Relatives may have a colorable claim where defamatory S reflects directly on them.

Answer 20

Defamation of Dead

Question 21

D must convey defamatory S to someone other than P who understands its defamatory meaning.
Disclosure without knowledge of defamatory meaning generally not actionable

Answer 21

Publication

Question 22

___________ self-publication generally not actionable

Answer 22

Compelled

Question 23

One edition of book, newspaper, broadcast is single publication regardless of number of copies; Also applies to websites which may constantly be changing

Answer 23

Single Publication Rule

Question 24

Will be liable if repeats defamatory S

Answer 24

Republisher

Question 25

Generally not liable unless exercises editorial control

Answer 25

Distributor

Question 26

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

Answer 26

Defamation and the Internet

Question 27

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

Answer 27

S of Fact v. Opinion:

Question 28

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

Answer 28

public figure

Question 29

One who is drawn into a particular public controversy -- even without purposeful action

Answer 29

Limited Public Figure

Question 30

One who has a position in government of apparent importance and control that public has an independent interest in qualifications and performance

Answer 30

Public Official

Question 31

Applies also to former _______ ______ if statement relates to official performance while in office

Answer 31

Public Official

Question 32

P has burden of proving S was false Publication with Actual Malice

Answer 32

Public Figure/Public Official/

Question 33

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

Answer 33

Public Figure/Public Official/

Question 34

Knowledge that statement is false; OR Reckless disregard for truth or falsity; OR Subjective awareness of probable falsity

Answer 34

Actual Malice:

Question 35

requires showing of ill will or spite. Not sufficient to establish actual malice

Answer 35

Express/Common Law Malice

Question 36

Burden | Public Figure/Public Official/

Answer 36

Requires clear and convincing evidence. Question of law for the court

Question 37

May recover presumed and punitive damages, along with any actual damages

Answer 37

Damages | Public Figure/Public Official/

Question 38

A P’s whose reputation is so bad may be entitled to nominal damages at most

Answer 38

Libel Proof Doctrine

Question 39

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

Answer 39

Private Person/Public Concern

Question 40

If can show actual malice, then P may be awarded presumed and also punitive

Answer 40

Private Person/Public Concern

Question 41

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

Answer 41

Private Person/Private Concern

Question 42

May limit right to recover if D publishes a retraction. Generally only apply to media defendants

Answer 42

Retraction Statutes

Question 43

Provides complete immunity no matter what D knew or why D made statement

Answer 43

Absolute Privileges

Question 44

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

Answer 44

Absolute Privileges

Question 45

Generally enjoyed by employers, credit-reporting agencies, employees in the course of an investigation.

Answer 45

Qualified Privileges

Question 46

Recipient and speaker have a common interest Risks posed by disclosure Whether information solicited or volunteered

Answer 46

Qualified Privileges | Factors

Question 47

Will be lost if D acted with common-law malice or where there is excessive publication

Answer 47

Qualified Privileges

Question 48

Generally cannot waive intentional or reckless defamation

Answer 48

Releases

Question 49

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

Answer 49

The “Reporter’s Privilege”

Question 50

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.

Answer 50

Fair Comment