Defamation Flashcards
What must P establish in a defamation suit?
P must establish that D published defamatory material concerning P that caused repetitional harm.
What constitutes a defamatory message?
Subjects P to scorn, ridicule, or deters others from dealing with P, causing repetitional harm.
Must be one that can be believed as truthful and reputation harming (hyperbole/opinions are not defamatory)
What happens if a P is not explicitly named in a defamatory statement?
Where P is not named, P must allege it is of or concerning P, and that P is identifiable by context.
What constitutes publication for the purposes of defamation?
Someone other than P read, saw, or heard the defamation.
+ P must show D either intentional published the information or was negligent in publishing the information.
+ REPUBLICATION RULE - In addition to D, who originates the defamatory message, other persons who repeat the defamatory message are potentially liable as well.
What is libel?
Defamatory message embodied in relatively permanent form – repetitional harm is presumed, but damages have to be proven.
What is slander?
Defamation in spoken form, rather than written form.
To recover, P must prove SPECIAL damages (specific economic losses that flow from the slander). P can also receive reputation damages.
What constitutes slander per se?
(a) Slander which imputes to P behavior or characteristics that are incompatible with the proper conduct of P’s business, profession, or office
(b) Slander that imputes to P commission of a crime involving moral turpitude or infamous punishment (prison/death)
(c) Allegations P has some loathsome disease
(d) Falsely imputing lack of chastity to a woman
What common law privileges to defamation are available?
Truth
Absolute privilege
Qualified/conditional privilege
Truth as a privilege against defamation
P must prove FALSITY as part of P’s prima facie case.
EXCEPTION: P is a private, nonpublic figure, and the matter is a private concern.
Absolute Privileges against defamation
Blanketed protection for D. If an absolute privilege exists, D will not be held liable for an otherwise defamatory message as a matter of law (no matter how bad it may have been).
Contexts:
+ communications between spouses
+ statements made on the floor of the legislature
+ between high ranking executive officials
+ made in conduct of judicial proceedings
Qualified/Conditional Privileges against defamation
D is qualifiedly immune from liability for defamatory messages (among others) if:
+ comments are made in a communication that appears reasonably necessary to protect, or advance D’s own legitimate interests
+ comments were communicated on a matter of interest to the recipient of the communication, or a third person
+ comments were communicated concerning a matter of public interest to an individual empowered to protect that interest
D will LOSE privilege if:
- D has bad intent, acts out of malice, or is reckless as to the statement’s truth/falsity
- D does not believe the truth of the defamatory communication.
Defamation of a Public Official
If defamation is related to capacity as a public official, P must prove actual malice by clear and convincing evidence.
D knew it was false or recklessly disregarded the truth or falsity.
Defamation of a Public Figure
Public Figures are treated like public official - same standard - clear and convincing evidence of actual malice.
+ all-purpose public figures: household names
+ limited public figures: people who inject themselves into a controversy
Defamation of a Private Figure
If the subject matter of the defamation is a matter of PUBLIC concern, D must be shown to have exhibited some degree of fault higher than strict liability, which presumably means negligence.
+ To be awarded presumed or punitive damages, actual malice is required.
If the subject matter of the defamation is a matter of PRIVATE concern, P does not have to prove actual malice to get presumed or punitive damages.
