Defamation Flashcards
Defamatory Communication
A communication is defamatory is it tends to harm the reputation or another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him.
Define of and Concerning P / Colloquium
A defamatory communication is made concerning the person to whom its recipient correctly, or mistakenly but reasonably, understands that it was intended to refer.
Define Publication
- The D intentionally or negligently disclosed the defamatory communication to a third person (i.e. someone other than the person being defamed) and
- That third person both heard (or read) and understood the defamatory communication
Slander Per Se
Slander per se is an oral defamation that imputes to the other:
- A criminal offense
- A loathsome disease
- A matter incompatible with one’s business, trade, profession, or office, or
- Serious sexual misconduct
What three questions are used to determine if an issue is one of public or private concern?
- Is it a debatable topic? (i.e. are people taking sides)
- Does this affect me? (i.e. the listener)
- How was this defamatory matter communicated (i.e. public broadcast?)
Actual Malice
Knowledge that the statement is false and that it defames the other person, or
Reckless disregard of these matters.
Reckless Disregard
Reckless disregard is demonstrating a purposeful avoidance of the truth. It is entertaining serious doubts as to the veracity of a statement, yet deliberately making it anyway.
List the Absolute Privileges
- Judicial Proceedings
- Legislative Proceedings
- In some cases, executive publications
- Publications consented to
- Publications between spouses
- Publications required by law
Explain the rule for determining if the judicial proceedings privilege applies
Both the content of the communication and the occasion for the publication, must be sufficiently related to the proceeding.
List the Qualified Privileges
- To speak to protect one’s own interest
- To speak to protect a common interest with another
- To speak to protect the interests of a third person
- The fair reporting privilege
- The fair comment privilege
Who determines if a conditional privilege is present and if has been abused?
- The court determines if a privilege exists, and
- Subject to the control of the court whenever the issue arises, the jury determines whether the D abused a conditional privilege
Abuse of a Qualified Privilege
One who publishes defamatory matter concerning another upon an occasion giving rise to a conditional privilege is subject to liability to the other if he abuses the privilege.
Abuse - Actual Malice
One who upon occasion giving rise to a conditional privilege publishes false and defamatory matter concerning another abuses the privilege if he
a. knows the matter to be false, or
b. Acts in reckless disregard as to its truth or falsity
Abuse - Purpose of the Privilege
One who upon occasion giving rise to a conditional privilege publishes defamatory matter concerning another abuses the privilege if he does not act for the purpose of protecting the interest for the protection of which the privilege is given.
Abuse - Excessive Publication
One who, upon an occasion giving rise to a conditional privilege publishes defamatory matter concerning another abuses the privilege if he knowingly publishes the matter to a person to whom publication is not otherwise privileged, unless he reasonably believes that the publication is a proper means of communicating the defamatory matter to the person to whom its publication is privileged.
