Defamation Flashcards
What is Defamation?
A 1) defamatory statement by the defendant 2) of or concerning the plaintiff 3) with publication to a third party 4) which results in damages to plaintiff.
Within Defamatory Statement by the Defendant, what is a defamatory statement?
Any statement that has the tendency to harm the reputation of the plaintiff (bring about mistrust or contempt, ridicule, shun, or cause plaintiff to be avoided).
Within Defamatory Statement by the Defendant, what is defamatory “on its face”?
If the statement standing alone is obviously defamatory, it’s “on its face”
Within Defamatory Statement by the Defendant, what is defamatory “only with extrinsic facts”?
Where some additional facts outside the statement are needed to show that the statement is defamatory
Within Defamatory Statement by the Defendant, are “Statements of Fact” always defamatory?
Yes. False statements made about the plaintiff, to a third party, causing damages, that are presented as “fact”, are defamatory.
Example: Joe stole $1,000 from his employer” is a statement of fact. If that statement isn’t true, it is defamatory.
Within Defamatory Statement by the Defendant, when are Statements of Opinion “defamatory’?
Will only be defamatory if the opinion is based on (or appears to be based on specific facts, or if couching fact in the form of an opinion such as “I think”.
Example: “I think that Joe is a jerk,” is an opinion. It’s not a polite opinion, but it is an opinion nonetheless. It is not defamatory as there is a right to opinion.
Example: But what about something in between fact and opinion? What if someone says, “I think that Joe stole $1,000 from his employer.” If you qualify a statement of fact by saying “I think,” does that always turn a statement of fact into an opinion? The short answer is no. “I think that Joe is a jerk” is a pretty vague statement of opinion. But “I think that Joe stole money from his employer” implies that Joe may very well have stolen some money. The very fact that you said it implies that you may think that he did and that you want others to know that he might have stolen some money.
Within Defamatory Statement by the Defendant, what is Hyperbole?
Colorful or figurative speech or extreme exaggerations are not defamatory statements
Example: My favorite example is Yeagle v. Collegiate Times, which involved a newspaper article that referred to a university official as the “Director of Butt Licking.” In analyzing whether the phrase could be deemed defamatory, the court wrote that “the phrase ‘Director of Butt Licking’ is no more than ‘rhetorical hyperbole.’ The phrase is disgusting, offensive, and in extremely bad taste, but it cannot reasonably be understood as stating an actual fact about Yeagle’s job title or her conduct, or that she committed a crime of moral turpitude.
Within Defamatory Statement by the Defendant, who can be defamed?
1) Any living individual (a dead person cannot be defamed) 2) Corporations or businesses (in a limited sense, but this usually falls under trade libel or disparagement).
Within Of or Concerning Plaintiff, what must the plaintiff establish?
That a reasonable person would understand that the defamatory statement referred to the plaintiff.
Within Of or Concerning Plaintiff, what is Collquium?
Facts introduced by plaintiff to show that the statement could be reasonably interpreted by at least one other person as referring to plaintiff. Used to show that the defamatory statement refers to the plaintiff.
Example: Suppose I wrote in a widely read newspaper that “officials” from XYZ organization were diverting funds for their own use and agitating terrorism. Now let’s suppose that the CEO gets wind of my statement and wants to bring a lawsuit. Arguably, the statement in the newspaper is defamatory, but is it sufficiently specific enough so a reasonable person would know I was referring to the CEO? I would argue no.
Suppose instead, that I wrote that a Vice-president at XYZ organization was an adulterer and used illegal drugs. And suppose further that there is only one Vice-president of XYZ. This would probably be specific enough to meet the colloquium element of defamation.
Within Of or Concerning Plaintiff, how is this element analyzed in relation to Group Defamation of all members of a Small group?
Each member may establish that the defamatory statement was made of and concerning him.
Example: The Boston Celtics are all drug users.
Within Of or Concerning Plaintiff, how is this element analyzed in relation to Group Defamation of all some members of a Small group?
Plaintiff can recover if a reasonable person could determine that defamatory statement was of or concerning plaintiff.
Example: Some of the Boston Celtics are drug users.
Within Of or Concerning Plaintiff, how is this element analyzed in relation to Group Defamation of all members of a Large group?
No members of a large group may establish that the defamatory statement was of or concerning him.
Example: All athletes are drug users.
What is Publication to a Third Party?
Communication to a third party who understood it
In order for an action of defamation to arise, the defendant must communicate his defamatory statement to someone other than the plaintiff.
Please note that publication to any third person satisfies this requirement for defamation. Thus, publication to the plaintiff’s friends, relatives, children and spouse will suffice. Further, the definition of publication is not limited to printed or oral statements. Any action by the defendant that causes a defamatory idea to be communicated to a third person about plaintiff is considered publication.
Within Publication to a Third Party - Publication, “communication” is a term of art and can be made in what two ways with regard to intent?
1) Intentionally 2) Negligently
Within Publication to a Third Party - Publication, what requisite intent is required for intentional publication?
Intent to publish only. Not the intent to defame.
Within Publication to a Third Party, what constitutes a Third Party?
Only needs to be published to one other individual who understands that it is a defamatory statement.
Within Publication to a Third Party, what is Repetition?
Each repetition is a separate publication and plaintiff may recover damages for each repetition of the defamatory statement.
If defamation is repeated without privilege and without permission, the person who repeated the statement and caused the harm is liable. A false statement is not less libelous because it is the repetition of rumor or gossip or of statements or allegations that others have made concerning the matter.
In fact, each repetition of a defamatory statement may be considered a separate publication and, therefore, a separate cause of action even if the source is identified.
Within Publication to a Third Party, what is the Single Publication Rule?
Each edition or issue of the publication of a book or magazine is considered one publication. An additional printing will be another publication.
Within Publication to a Third Party, what is a Primary (Original) Publisher?
Every individual that takes part in making the publication is a primary publisher (newspaper or TV is as responsible for defamatory message as author or original speaker).
An primary (original) publisher is anyone who has played a part in the original publication of the defamatory statement. Authors, their book publishers, newspaper reporters and editors, are all considered original publishers and could be held liable for defamatory statements.
Within Publication to a Third Party, what is a Republisher?
One who repeats defamatory statement is liable even if they say they do not believe the statement.
A re-publisher is someone who repeats someone else’s defamatory statement. For example:
Opie, a radio disk jockey, reads passages from a newly published book while doing his morning radio show. The book in general, and the passages read by Opie in particular, defame Anthony. In this situation, the book’s author, and possibly his editor and publisher, are all original publishers.
The disc jockey however is considered a re-publisher because he has repeated someone else’s defamatory statements.
Repeating someone else’s defamatory statements is not the only way to republish a defamatory statement. For example, if Opie pastes a leaflet onto the front door of Howard’s home and that leaflet defames Anthony, failure to remove that leaflet may be considered negligent republication on the part of Howard.
Within Publication to a Third Party, what is a Secondary Publisher (Disseminator)?
One who is responsible only for disseminating matter that might be defamatory is liable only if they knew (or should have known) of the defamatory content.
A disseminator is someone who deals with defamatory material in its physical form. Newspaper stands, book stores, libraries and, in some cases, music stores are disseminators.
Disseminators are typically held to a more relaxed standard of liability than original publishers and re-publishers. A disseminator will not be held liable for defamation if he does not know that the material he is dealing in contains defamatory statements and has no reason to know of the presence of defamatory material. Further, disseminators are under no obligation to examine the material they deal in for defamatory material.
Within Damages to the Plaintiff, what are the two types of Damages?
1) General (or Presumed) damages 2) Special damages
Within Damages to the Plaintiff, what are General damages?
Presumed by law and need not be proven by plaintiff. Intended to compensate plaintiff for general injury to reputation.
Within Damages to the Plaintiff, what is the purpose of General damages?
Intended to compensate plaintiff for general injury to reputation.
Within Damages to the Plaintiff, what are Special damages?
Plaintiff must prove pecuniary loss as a result of defamation’s effect on reputation
