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
