Defamation

Question 1

What are elements of defamation?

Answer 1

1) D must make a defamatory statement that specifically identifies P (name-calling is not treated as defamatory; statements of opinion can go either way) (don’t have to use P’s actual name, can be identified by position or group) (P must be living)
2) statement must be published (de minimis: only need to share with one person other than D) (publication doesn’t have to be intentional) (if statement is made only to P, no publication)
3) there must be damage (to P’s reputation)

Question 2

When are damages presumed in defamation suit?

Answer 2

1) in libel cases (when statement is written down)
2) in slander (oral or spoken defamation): damages only presumed in slander per se (any statement that falls into one of following categories: statement related to P’s business or profession, a statement that P committed crime of moral turpitude (a serious crime), a statement imputing unchastity to a woman, a statement that P suffers from a loathsome disease (leprosy or venereal disease)); in NY, fifth category: imputation of homosexuality
Note: if not slander per se, damages in form of reputational or economic harm must be proven

Question 3

What additional elements are required if defamation involves a matter of public concern?

Answer 3

1) falsity of defamatory language
2) fault on part of D (exact nature of proof of fault depends on who P is: if P is a public figure, P must prove malice, so either that D knew statement was false when he made it OR that the statement was made with a reckless disregard of the truth; if P in public concern case is a private figure, enough to show that statement was made negligently)

Question 4

What are affirmative defenses for defamation?

Answer 4

1) Consent (both express and implied)
2) truth (D bears burden of proof)
3) privilege (either absolute or qualified)

Even if have a defense under truth, might still have claim for invasion of privacy or IIED

Question 5

Absolute v. qualified privilege?

Answer 5

Absolute flows from who the person is who the statement was made about; includes statements made during judicial proceedings, by legislators during proceedings, by federal executive officials, members of media when engaging in accurate reporting of public proceedings, statements between spouses

Qualified privileges arises based on circumstance in which statement is made, not out of status of D; sometimes includes reports of official proceedings, in any situation where there is a social or public interest in encouraging candor, statements made to police

Question 6

What are conditions for qualified privilege?

Answer 6

1) statement must be made in good faith (must have a reasonable basis for thinking it is true)
2) matters must be topically relevant to the purpose of the privilege (collateral matters not privileged)

qualified privilege may be lost if statement is not within scope of privilege, or it is shown that speaker acted with malice

Question 7

What is distinction between libel per se and libel by extrinsic fact?

Answer 7

Only in NY.

Libel by fact is treated like libel per se when it would fall into slander per se category