Defamation and related torts Flashcards
Defamation - elements
The defamatory statement that specifically identifies the plaintiff
Published to a third-party
Falsity of the defamatory language
Fault on the part of the defendant
Damage to the plaintiff reputation
Defamation - defamatory statement - generally
Defamatory statement is one tending to adversely affect one’s reputation. A statement of opinion is actionable only if it appears to be based on a specific facts, and an express allegation of those facts would be defamatory. Name-calling is insufficient. 
Defamation - defamatory statement - inducement and innuendo
If the statement is not defamatory on its face, the plaintiff may plead additional facts as inducement to establish defamatory meaning by innuendo
Defamation - defamatory statement - living person requirement
Any living person may be defamed. Defamation of a deceased person is not actionable. In a limited sense, the corporation, unincorporated association, or partnership may be defamed. For example, by remarks as to its financial condition, honesty or integrity.
Defamation - publication - generally
Publication means communication of the defamation to a third person who understands it. Such publication can be made either intentionally or negligently. It is the intent to publish, not the intent to defend, that is the requisite intent. Each repetition is a separate publication. However, for magazines or newspapers, most states have adopted a single publication rule under which all copies are treated as one publication.
A statement made about the plaintiff only to the plaintiff is not defamation because there is no publication.
Defamation - statement must specifically identify plaintiff - colloquium
if the statement does not refer to the plaintiff on its face, extrinsic evidence may be offered to establish that the statement refers to the plaintiff
Defamation - statement must specifically identify plaintiff - generally
The plaintive must establish that a reasonable reader, listener, or viewer would understand that an amatory statement referred to the plaintiff
Defamation - publication - who may be liable
Primary publishers are liable to the same extent as the author or speaker. One who repeats a defamation is liable on the same general basis as the primary publisher, even if she states the source or makes it clear that she does not believe the defamation. Selling papers or playing audio files is the secondary publisher and is liable only if he knows or should have known of the defamatory content. An Internet service provider is not treated as a publisher when a user of a service post defamatory content. 
Defamation - statement must specifically identify plaintiff - group defamation
If that defamatory statement refers to all members of a small group, each member may establish that the statement specifically identifies them by alleging that they are a group member. Meeting every member of that small group wins.
If the statement only refers to some members of a small group, the plaintive can recover if a reasonable person would view the statement as referring to the plaintiff
If the statement is about a large group, no member can prove that the statement specifically identifies them. The defendant wins.
Defamation - fault on defendant’s part - public official or figure must prove actual malice - what constitutes a public figure?
Under the New York Times versus Sullivan rule, actual malice must be proved in a defamation case brought by a public official and public figures.
A person becomes a public figure by achieving pervasive fame or notoriety or by voluntarily, assuming a central role in a particular public controversy.
If it is someone who only has a central role in a particular public controversy, they are a limited public figure. And you only need to prove for the thing that they are in the public eye for.
Defamation - fault on defendant’s part - private persons must prove negligence if matter of public concern
When a private person is the plaintiff, only negligence regarding the falsity must be proved if the statement involves a matter of public concern.
If the statement is not a matter of public concern, constitutional restrictions, do not apply. However, note that many states require a showing of negligence as a matter of state law. If the defendant is negligent, only actual injury damages, a recoverable. However, if actual malice is found, damages may be presumed and punitive damages are allowed.
Defamation - falsity
Under a traditional common law, a plaintive did not have to prove that the statement was false. Rather the defendant was obliged to prove truth as a defense.
Most states have altered that rule, however, and now require a plaintiff to prove falsity as part of the case and chief. Even in states that still follow the traditional rule, the plaintiff must prove falsity in any case for the plaintiff is constitutionally obligated to proof fault.
Defamation - fault on defendant’s part - generally
I’m majority of states require a showing a fault on the part of the defendant. In addition, there are constitutional limitations, depending on the plaintiff status.
Defamation - fault on defendant’s part - private persons must prove negligence if matter of public concern - what is a matter of public concern
Did determine whether the defamatory statement involves a matter of public concern or private concern, the courts will look at the content, form, and context of the publication.
Defamation - fault on defendant’s part - public official or figure must prove actual malice - definition of actual malice
Actual malice is: knowledge that the statement was false or reckless disregard as to whether it was false.
This is a subjective test. The defendants spite or ill well is not enough to constitute malice. Deliberately altering a quotation may constitute malice if the alteration causes a material change in the meaning conveyed by the quotation.
