Defamation Flashcards
Defamation
In order to recover for defamation, the P must prove that the P 1) made a defamatory statement 2) about the P 3) that was published to 3rd party AND 4) caused damages to the P’s reputation. Additionally, the Constitution may require the P to prove fault and falsity.
Defamatory Statement
A statement is defamatory if it tends to harm the P’s reputation or deters others from dealing with him. Statements of facts are actionable, but statements that are issued in the form of an opinion are not.
Defamatory Statement - Fact v. Opinion
Facts are statements that can be proven true or false. By contrast, opinions are matters of subjective belief and cannot be proven one way or the other. Nevertheless, an opinion may be defamatory if it can be reasonably interpreted as implying underlying facts.
1) The dispositive question is whether a reasonable person could conclude that the published statement has genuine support and appears to be based upon specific underlying facts.
Of or concerning the Plaintiff
The person who heard the statement must have understood that it referred to the P.
Published to a 3rd Party
The defamatory statement must have been communicated to someone other than the P.
Published to a 3rd Party - Republisher
A republisher is liable to the same extent as the person who had originally published the defamatory statement. This is true even if the republisher accurately reports what the original publisher told him. The rational is that the last utterance may do more harm than the 1st.
Damages - Libel and Slander Distinguished
At common law, the damages recoverable in a defamation action depend on whether the defamatory communication is considered libel or slander. Slander is an oral utterance, while libel is written and in a more permanent form such as movies, video tapes, and mass radio broadcasts.
1) A P may recover general or presumed damages for any libelous statement. In cases of slander, special (pecuniary) damages must be proven unless the statement falls into one of the slander per se categories. Special damages include the loss of a job and lost profits.
2) A statement is slander per se if it imputes the P: 1) committed a felony or a crime involving moral turpitude 2) has an infectious and loathsome disease 3) is unfit is his business, trade, or profession OR 4) engages in serious sexual misconduct.
Constitutional Requirements
Under the 1st Amendment, a public figure or public official must show actual malice. A public figure is someone who has achieved a pervasive fame and notoriety in society. A public official is a person involved in the hierarchy of government and has substantial responsibility for or control over the conduct of governmental affairs.
1) The fault standard of actual malice requires the P to prove, by clear and convincing evidence, that he D either 1) knew the statement was false OR 2) recklessly disregarded whether the communication was true i.e. the D must have entertained serious doubts as to the truth of the publication. It is a subjective standard.
Private Person/Matter of Public Concern (Negligence)
If the defamed party is a private person and the statement deals with a matter of public concern, most states require the P to prove actual injury and at least negligence on the D’s party. To determine if a matter is of public concern, a court must examine the speech’s expression, content, form, and context as revealed by the whole records.
1) A private person suing a private matter does NOT need to prove fault. A private person only needs to establish the common law elements of defamation.
Absolute Privilege - Statements Made in the Judicial Proceeding
Any participant in a judicial proceeding is absolutely privileged to utter defamatory comments in the course of the proceeding. Participants include the judge, parties, witnesses, and attorneys. Thus, any statement made in court is absolutely privileged so long as it is relevant to the proceeding.
Public Interest Privilege
A person is conditionally privileged to defame another if he reasonably believes that his statements are necessary to protect a legitimate public interest. Additionally, a person is privilege to make a defamatory remark about another if the matter commented upon is of general public interest.
Common Interest Privilege
There is a qualified privilege for communications made in the common interest of the publisher and recipient. Common interest are usually found among members of identifiable groups in which the members share similar goals. The rationale for this privilege is to promote the free exchange of information among those engaged in a common activity and to permit them to make appropriate internal communications. Once the privilege arises it can only be lost through abuse.
Fair and Accurate Report of Public Proceedings
A fair and accurate report of a judicial, legislative, or executive proceeding is privileged if the report contains a fair and accurate description of what happened at the proceeding. This privilege is generally limited to public meetings.
