Defamation Flashcards
Defamation
Under tort law, defamation is a false and defamatory statement, published
intentionally or negligently to a third person, that the third person understood applied to
the plaintiff, and which caused damage to the plaintiff. In order to recover damages, in
addition to proving each element of defamation, the plaintiff is required to show that he
or she has made a demand for a retraction from the defendant that would be given
equal publicity, and the plaintiff must show that the defendant has refused to give the
retraction.
Defamatory
A statement is defamatory if it holds one up to hatred, contempt, disgrace,
ridicule, or causes shunning or damage in occupation.
Slander Per Se
Slander per se results from a slanderous statement that is sufficiently
serious to allow the plaintiff to recover without proof of special damages. The
slanderous statement must allege criminal behavior, loathsome disease, unchastity, or
improper business practices. For slander per se, the plaintiff is not required to prove
special damages in order to recover general damages.
Libel
Libel is written defamation.
Libel Per Se
Libel Per Se is a statement which is clearly defamatory on its face,
meaning that inducement and innuendo are not needed to establish the fact that the
statement is defamatory. For libel per se, proof of special damages is not required, and
general damages are presumed.
Libel Per Quod
Libel per quod is not defamatory on its face but is defamatory only
when viewed in light of outside circumstances, meaning that the inducement and
innuendo are needed to establish the defamation. Libel per quod requires proof of
special damages in some jurisdictions.
Colloquium
Colloquium is the offer of extrinsic evidence to explain the defamatory
sense of the defendant’s statement, and is included in a complaint when a statement is
not defamatory on its face.
Inducement
Inducement is the extrinsic facts necessary to understand the defamation.
Innuendo
Innuendo is the connection between the inducement and the defamation
which explains why the statement is defamatory.
Special Damages for Defamation
As the term is used in the law of defamation,
special damages are those of a pecuniary nature, such as loss of a job or loss of
customers or business.
Absolute Privilege
Under an absolute privilege the defendant has complete immunity
from liability for defamation, even if he defames maliciously, knowing the statements to
be untrue. Absolute privileges exist for statements:
1) during judicial proceedings,
2) during legislative proceedings,
3) during executive government functions which are official statements of
government officials, or
4) between husband and wife.
Qualified Privilege
Under a qualified privilege, the defendant has immunity from
liability for defamation if he is acting for the following socially desirable purposes:
1) to protect the defendant’s own interests
2) to protect the interest of others
3) to protect a common interest
4) to protect a public interest
5) to offer an opinion within the Fair Comment Privilege
A qualified immunity can be lost if the statement was irrelevant, made with malice,
with a bad faith belief, or if it was excessively publicized.
Fair Comment Privilege
The Fair Comment Privilege is a common law rule derived
from the First Amendment rights of free speech and free press. The privilege applies to
statements of opinion which have been made in good faith on matters of public interest.
Covered by this privilege are opinions about newsworthy persons, events, products, art,
works, etc.
New York Times v. Sullivan
Under New York Times v. Sullivan, the U.S. Supreme
Court held that a public official cannot recover damages for defamation bearing upon
his or her qualifications for a position unless he or she can prove by clear and
convincing evidence that the statement was made with actual malice. Later cases
extended the rule to public figures.
Actual Malice in Defamation
In defamation, malice does not necessarily mean ill will.
It means that the publication of the defamation was made with either knowledge that the
statement was false, or with reckless disregard of whether or not it was true.
