Defamation:Libel and Slander

Question 1

What are the elements of defamation?

Answer 1

1. Defamatory statement [must identify PL]
2. Publication means the DF must tell at least one other person. No one eavesdropping or listening. Only when the DF repeats the statement or tells someone else. Diminimus requirement.
3. Damages. If consist of libel damages are presumed. Have to show you lost some economic damage.

Question 2

What are the three guidelines to determine if there was a defamatory statement?

Answer 2

a) If it would tend to adversely effect the PL’s reputation
b) Lower the PL in the estimation of the community
c) Discourages or deters third parties from associating with the PL
[name calling or insults are generally not defamatory]

Question 3

What is libel?

Answer 3

Defamation written down. i.e. newspaper, TV and Radio too

Question 4

What is slander?

Answer 4

Oral defamation

Question 5

Four types of slander where damages are presumed:

Answer 5

1. any defamatory statement relating to the PL’s business or profession
2. a crime of moral turpitude
3. Statement that preludes unchaste of a woman
4. A statement that the PL suffers from a loath disease. i.e leprosy, veneral diseases

Question 6

Defenses to Defamation

Answer 6

1. if the statement is true [affirmative defense so DF must prove the truth of the statement]
2. absolute privileges [spouses- any communication btwn husband and wife are privileged. Can defame third parties. Officials in all 3 branches of gov’t as long as they are engaged in their business, modern absolute privilege: members of the media aka fair reporting privilege. Extending that privilege gov’t officials have to media. If the media is reporting on what the gov’t is doing]
3. Qualified privilege [letter of recommendation for a job. Whenever there is a public interest in an encouraging candor it is ok. But there has to be two conditions. The DF who is writing or is giving a reference must have a reasonable or good faith belief that what he or she is saying is true. The defamatory statement has to be confined to relevant matters.

Question 7

Public figures cannot sue for defamation unless

Answer 7

the statement was said with malice

Question 8

Public officials cannot sue for defamation unless

Answer 8

The public official proves knowing falsehood or reckless disregard of the truth.

Question 9

What is the difference between public official and public figure?

Answer 9

Public official is appointed or elected. Public figure is private citizen influencing public policy and ordering society.

Question 10

Private citizens may recover for defamation but

Answer 10

PL must show: (if of public concern)

1. Some degree of fault and
2. Actual damages.
3. actual malice still applies but less showing

If the PL is a private person and the defamatory statement is of private concern, the PL may recover without proof of actual damages.

Question 11

Malicious Prosecution elements:

Answer 11

There is a Prosecution (merely reporting is not enough to satisfy malicious prosecution)
Instigation
Malice
Lack of probable cause: there has to be a reasonably grounded belief an offense has been done
Termination: PL has to prevail on the merits of the prosecution

Question 12

Special Injury rule

Answer 12

a claim for malicious civil litigation requires a special injury… physical detention of person or property or repeated litigation of the same case

Question 13

Four types of invasion privacies

Answer 13

1. DF invades or intrudes on PL’s seclusion in a way that would be highly offense to a reasonable person i.e. unlawfully intercepting phone conversations, peering into someone’s window. [does not apply to public places. PL must be in a place where there is a reasonable expectation of privacy]
2. Use of PL’s name or image for a commercial purpose [newsworthy use will not trigger liability]
3. False light: occurs when the DF makes a wide spread dissemination of a major falsehood about the PL [has to be highly offensive not just false]
4. Disclosure: widespread dissemination of confidential information about the PL. The underlying information needs to be confidential

Question 14

What is a defense to privacy?

Answer 14

Consent

Question 15

Elements of false light:

Answer 15

Disclosure
False information/false impression
Offensiveness: not just false but highly offensive to a reasonable person
Constitutional malice: If PL is a public figure or a public official, he or she has to meet the Sullivan standard of reckless disregard.
Damage/loss

Question 16

What is the difference between slander and libel and injurious falsehoods?

Answer 16

Slander and Libel can apply to private and commercial. Injurious falsehood apply only to commercial.

Question 17

Defenses to Malicious Prosecution:

Answer 17

judges, prosecutors are immune

guilt-in-fact: the PL was in fact guilty