Defamation Flashcards
Definition
Communication that damages the reputation of another
Elements
Defamatory statement concerning plaintiff, falsity, fault, publication, damages and defenses
Defamatory statement concerning plaintiff
A. A statement is defamatory if it would tend to lower plaintiff’s reputation in the community or deter others from associating with plaintiff (Maj.); or hold the plaintiff up to hatred, scorn or ridicule (Min.).
B. The statement must be understood by another in the defamatory sense. If not, the statement is not actionable
C. The statement does not have to be believed.
D. Name calling, abusive language, ambiguous statements, jokes, jest or insults are not defamatory.
E. The statement must be about the plaintiff. The test is whether the reasonable person who knows the plaintiff would recognize plaintiff from the statement
F. Words are to be interpreted in the sense in which they are reasonably understood and are presumed to have the meaning ordinarily attached to them.
G. Conveyance of Defamatory Meaning
1. On the face of the statement and no additional information is needed.
2. Inducement – additional facts are needed to understand the defamatory meaning of the statement or about whom the statement is made.
3. Innuendo – with additional information the statement is determined to be defamatory.
4. Colloquium – with additional information the statement is determined to be about a particular person.
H. Statement Regarding Groups of People
1. Large groups – an individual member of the group cannot successfully sue unless a particular circumstance points to that plaintiff.
2. Small groups – each member of the group is being constructively referred to and can sue.
Falsity
A. A statement is false if it is not substantially true
B. There is no such thing as a false opinion but if the opinion asserts by implication the existence of facts supporting the opinion which are false the statement can be defamatory. Can the statement be proven? If so it is a fact rather than an opinion
C. Factors to consider in analyzing fact vs. opinion:
1. Precision and specificity (the more specific the statement the more likely it is fact rather than opinion);
2. Verifiability;
3. Literary context;
4. Public context.
D. Burden of Proof
1. If the matter is of public concern the plaintiff must prove falsity
2. If the matter relates to a public official or figure, the plaintiff must prove falsity.
3. If the matter is not of public concern or about a public official or figure, the defendant must prove truth.
Fault
A. At Common Law if the Statement Was Defamatory Malice was Implied (Strict Liability Standard).
B. N.Y. Times v. Sullivan (1964).
1. Recognized need to protect First Amendment rights and the court created a greater protection for those who made statements about public figures or officials.
a. Public figure – those who occupy a position of power, influence, fame or notoriety are public figures for all purposes. Limited purpose public figures have placed themselves into resolution of a particular controversy or issue and to be defamatory, the statement must relate to plaintiff’s participation in the controversy.
b. Public official – public employee who has substantial control over public affairs. Does not encompass all public employees.
C. Public Figure or Official vs. Media or Private Defendant.
1. One who publishes a false and defamatory communication concerning a public official or public figure with regard to conduct, fitness or role in that capacity is subject to liability only if the defendant knows the statement is false and that it defames plaintiff or acts with reckless disregard to these matters - constitutional malice. Malice must be proven with convincing clarity.
a. Negligence or acting out of spite is not sufficient.
D. Private Individual vs. Media or Private Defendant and matter is of public concern.
1. One who publishes a false and defamatory communication concerning a private person or concerning a public official or figure with regard to purely a private matter (i.e., not affecting his conduct, fitness or role in his public capacity). Individual states set the standard so long as it is not a strict liability standard
a. Maj. – Negligence – almost all states.
b. Min. – Malice.
E. Private Communication – It remains to be seen whether the Gertz rule applies to publication other than in the press, media or books. The result is that Gertz may apply only when the subject matter of the defamatory communication involves an issue of public interest. If the statement is not of public concern the fault element (malice or negligence) may not be required.
Publication
A. Defamatory Words Must Be Published to At Least One Person Other Than the Plaintiff Who Understands the Statement As Being Defamatory And the Defendant Must Have Intended to Publish or Was Negligent In Publishing.
B. Repetition of Defamatory Statement – may be a new publication.
C. Single Publication Rule – all copies of the same publication equal a single publication.
D. Form of Publication:
1. Libel - written or printed words or by embodiment in physical form or any other form of communication which has potentially harmful qualities associated with printed or written words. Republication of libel = libel. Radio and TV are libel unless there is a statute to the contrary. Putting oral defamation into writing = libel.
2. Slander - publication of defamatory statement by spoken words transitory gestures or other communications not included in libel.
Damages
A . Compensatory – both general and special damages. Retraction of the statement limits but does no eliminate damages.
B. Punitive – defendant acts out of hatred, ill will or malice. Damage is designed for the purpose of punishing the defendant rather than compensating the plaintiff.
C. Nominal – damage designed to vindicate one’s character.
D. Libel – more permanent form of communication, therefore, less should have to be proven in order to recover damages.
1. On its face -
a. Can recover general damages without proving special damages, i.e., injury to reputation is presumed.
2. Per quad or by inducement -
a. Split of authority:
(1) In some jurisdictions plaintiff can recover generals without proof of specials
(2) In other jurisdictions plaintiff must prove specials to get general damages unless the libel refers to one of the following:
(a) Serious crime;
(b) Loathsome or communicable disease;
(c) Characteristic incompatible with business, trade or profession;
(d) Serious sexual misconduct.
E. Slander – communication which is transitory in nature, therefore, more should have to be proven in order to recover damages.
1. Action does not lie without proof of special damages actually sustained by plaintiff. If plaintiff is able to prove specials, general damages which compensate for harm to reputation are also recoverable.
2. Exception for slander per se which include one of the following:
a. Serious crime;
b. Loathsome or communicable disease;
c. Characteristic incompatible with business, trade or profession;
d. Serious sexual misconduct (typically female but may apply to males – impotency, homosexuality).
Constitutional Limits
- Public official or figure vs. media or private defendant
a. Plaintiff must prove malice and there are no constitutional restrictions and damages are recoverable per above - Private individual vs. media or private defendant
a. Maj. - Negligence must be proven
b. Min. - Malice must be proven
c. Exception – the U.S. Supreme Court has not yet decided a case involving a matter of private concern brought against a media defendant. - If the standard is malice no constitutional limits are placed on damage recovery.
- If the standard is negligence plaintiff must prove actual injury i.e., damages are limited to:
a. Out of pocket losses;
b. Impairment of reputation;
c. Personal humiliation;
d. Mental anguish and suffering. - If standard is strict liability – statement is not of public concern and does not involve a public official or public figure.
a. The court will likely rule that the damage recovery has the same limitations which are in place when the standard is negligence.
Defenses
A. Absolute Privilege – From a societal standpoint people should be able to speak without fear of litigation. Because the privilege is absolute it cannot be lost.
1. Judicial proceedings – unless the statement is irrelevant to the subject matter of the proceedings.
2. Legislative proceedings – unless the statement is irrelevant to the subject matter of the proceedings.
3. Executive communication – high ranking, policy ranking executive officers.
4. Consent of plaintiff.
5. Husband and wife speaking with each other.
6. Political broadcasts. This defense applies to radio and television defendants rather than the speakers.
B. Qualified Privilege - Privilege to Make Statements to Protect Legitimate Interests.
1. Interests of publisher;
2. Interest of others;
3. Common interests;
4. Communication to one acting in the public interest.
5. Qualified privileges can be lost if:
a. The communication is published in an unreasonable manner;
b. The communication is published to one who cannot protect the interest;
c. The communication is not connected to any interest to be protected;
d. The communication is published with a desire to damage plaintiff.
C. Truth is a defense if the matter is not of public concern and does not involve a public figure or official.
