Defamation Flashcards
common law elements
- defamatory language
- of or concerning plaintiff
- publication by defendant to a third person
- Damage to plaintiffs reputation
Constitutional Elements
all four elements plus falsity of the statement and fault on the part of defendant
defamatory language
language tending to adversely affect one’s reputation.
who can be defamed?
any living person (includes corporation sometimes) A dead person cannot be defamed
of or concerning the plaintiff
p must establish that a reasonable reader, listener, or viewer would understand that the defamatory statement referred to the plaintiff.
colloquium
if statement is not refer to p on its face, p can prove by extrinsic evidence that statement refers to p
defamation of large group
no one wins
some members of small group
recover if a reasonable person would view the statement as referring to the plaintiff.
Publication
communication of the defamation to a third person who understands it. cannot be to the plaintiff.
liable
primary publishers (newspapers, TV stations, etc,) are liable to the same extent as the author or speaker. internet is not a publisher. secondary publisher such as selling papers or playing tapes is only liable if knows it is defamatory
libel
written or printed. general damages are presumed
Slander
spoken and need to prove special damages if in one of the slander per se categories.
slander per se categories
statements that
- adversely reflect on one’s conduct in a business or profession
- one has a loathsome disease
- one is or was guilty of a crime involving moral turpitude (most common law crimes)
- a woman is unchaste
radio and tv broadcasts
libel
falsity
p has burden of proving this if it is a matter of public concern.