Defamation Flashcards
what is defamation? (distinguish from PDPF)
o defamation: a tort designed to protect against harms to reputation (i.e. lowering plaintiff in the eyes of “a substantial and respectable community”)
**the question is not whether the statement actually caused injury but whether it had a “tendency to do so” (look to how a RPP would interpret it)
distinguish from tort of “public disclosure of private facts” (below)
• defamation needs publication to a 3p whereas PDPF needs mass dispersment
• PDPF is aimed primarily at the mass media
• defamation “lowers in the eyes of the community,” whereas for PDPF, π can recover even if the disclosed facts painted in a positive light
PF case for defamation
o ’s PF case: show that ∆ published a false, defamatory statement of fact concerning and was guilty of some level of fault with respect to the falsity of the statement
**may also have to show demonstrable harm
Common Elements of State Law Claims (from Mulraine)
• (1) publication to a 3p,
• (2) defamatory communication, and
• (3) of and concerning
SOR for defamation
(1) the court must determine whether a statement is capable of a defamatory meaning
(2) if the judge answers yes, the jury should be allowed to determine whether the statement was defamatory in the actual circumstances of the case
two key inquiries to determine if a statement was defamatory
(1) what does the statement mean?
• courts usually will not distinguish between the implicit/explicit messages that a statement conveys
• libel by implication: where ∆ juxtaposes a series of facts so as to imply a defamatory connection between them OR creates a defamatory implication even if the particular facts are correct
o ex) name next to defamatory picture
o ex) “he was seen at L street” when everyone knows there is a brothel on that street
o when innocent on its face, plaintiff is allowed to show extrinsic facts (the “inducement”) that would explain why the statement would be understood in a defamatory sense by those who knew the unstated facts (the inference/ “innuendo”)
• innocent construction rule: if an ambiguous term can be reasonably construed innocently when the words are given their natural and obvious meaning, the statement is not actionable
o note that ambiguity is usually for the jury to examine to see if the statement would be understood as defamatory
• context is a key factor
(2) is the imputation (i.e. the meaning ascribed to the statement by the outcome of the first inquiry) one the law makes actionable?
• generally not defamatory unless it would tend to prejudice in the eyes of a “substantial and respectable minority of the community”
• humor and figurative speech are typically not actionable
o ex) fantastic statements, loose speech, rhetorical hyperbole
what is publication? republication?
o publication: the communication of defamatory material by any means (oral, written, broadcast, printed, photographic) to a third person (i.e. can’t just be to the person making the comment or the person being defamed)
republication rule: anyone who repeats a libel “adopts” it as his own and is responsible as if he were the originator of the statement
• different rule applies to the internet (you can likely republish without liability based on the frequency and commonality of republication these days)
rule for opinions in defamation
o rule: for defamation, there is no categorical exclusion of suits for statements of opinion, but statements must at least imply an assertion of fact that can be shown to be false before a defamation finding can be upheld (Milkovich)
**excluding statements that cannot reasonably be interpreted as asserting such fact (i.e. rhetorical hyperbole or satire) as well as other assertions that simply do not imply a fact
what are special damages
o special harm/special damages: the loss of something having economic/pecuniary value which must flow directly from the injury to reputation caused by the defamation (not from the emotional effects of defamation)
round figures or a general allegation of a dollar amount do not suffice
general rule and exceptions (slander per se) for slander
general rule: a plaintiff has no cause of action unless the statement is (1) defamatory and (2) causes demonstrable pecuniary loss, or “special harm”
exception (slander per se): need not prove special damages if the allegation
• (1) is that committed a crime
• (2) tends to injure in his trade/business/profession
• (3) is that has contracted a loathsome disease
• (these exceptions are said to be inherently likely to cause material damage)
general rule for libel and libel per se
general rule: plaintiff need only prove defamation (no need to prove special harm)
rule: defamation which is broadcast by means of radio/TV should be classified as libel (because it carries the same risk of widespread dissemination as writings, consequent on its permanence in form and assumed credibility – and thus need not meet the more rigorous standards of slander) (Matherson)
libel per se: defamatory meaning is apparent on the face of the statement (i.e. we don’t have to worry about interpretation)
inquiry for IDing plaintiff and common problem areas
o the inquiry: was the statement understood to refer to ?
**not whether ∆ intended to refer to (that goes to fault)
o common issue areas
identification by implication
group libel
• look to (1) the size of the group and (2) the inclusiveness of the language
• ex) “Belmont law students” is likely not personalized enough, but “Belmont law review editors” likely is
entities other than natural people
• an organization can sue if the matter tends to prejudice it in the conduct of its business or to deter others from dealing w it
gertz private v public distinctions
**creates private vs public distinctions based on two concerns: (1) regular and continuing access to the media as a way to clear your name, (2) voluntariness of having your actions scrutinized by the public eye, and (3) the public cares about what these individuals have to say
what is a public official
(1) public officials
• “a person empowered with significant responsibility and discretion in managing public affairs” – i.e. tethered to the gov’t
o ex) candidates, gov’t officials, former officials, court-apt psychologist
• the public official designation applies at the very least to those among the hierarchy of gov’t employees who have, or appear to the public to have, substantial responsibility for or control over the conduct of govt’l affairs
o the employee’s position must be one which would invite public scrutiny and discussion of the person holding it, entirely apart from the scrutiny and discussion occasioned by the particular charges in controversy
o **courts are trending on allowing more and more officials to meet this standard (like police officers), but the USSC has not yet spoken on this
factors to determine public official status
o the inherent attributes of the position
o whether has regular and continuing access to media
o whether assumed the risk of public scrutiny through voluntary actions
common non-public official situations
o simply appearing in the newspapers in connection with some newsworthy story or stories
o social, professional or business prominence does not by itself
o forced involvement in a public trial
o those charged with defamation cannot by their own conduct in making their victims notorious thereby create their own defense
o merely applying for, receiving or benefiting from public research grants… does not make one a public figure
pf standard for public officials
• defamation actions brought by public officials regarding comments related to a public official’s official conduct or fitness for office are subject to the actual malice standard and must be shown with convincing clarity (more than a preponderance of the evidence) for alleged defamation relating to their official conduct (Sullivan)