Defamation, Privacy and Business Torts Flashcards
When may a plaintiff bring an action for defamation?
A plaintiff may bring an action for defamation if:
i) The defendant’s defamatory language;
ii) Is of or concerning the plaintiff;
iii) Is published to a third party who understands its defamatory nature; and
iv) It damages the plaintiff’s reputation.
In a defamation case in which the defamatory statement relates to a matter of public concern, what extra elements is the plaintiff required to prove?
The plaintiff is constitutionally required to prove fault on the part of the defendant. The plaintiff must also prove that the defamatory statement is false as part of her prima facie case.
In a defamation case in which the plaintiff is either a public official or a public figure, what extra elements must the plaintiff prove?
Actual malice. The plaintiff must also prove that the defamatory statement is false as part of her prima facie case.
What is defamatory language?
Language that harms a person’s reputation by:
• diminishing respect, esteem, or goodwill toward the plaintiff,
• lowering plaintiff’s standing in the community, or
• deterring others from associating with the plaintiff.
When is an opinion actionable (in a defamation case)?
An opinion is actionable if the defendant implies that there is a factual basis for that opinion.
Example:
• “In my opinion, John Jones is a thief” –> could be regarded as defamatory because it implies the fact that John Jones stole something.
•“In my opinion, John Jones is a lousy artist” —> cannot be defamatory because people can disagree regarding the quality of an artist’s paintings.
What counts as publication of defamatory matter?
Publication of defamatory matter is its intentional or negligent communication to a third party (i.e., to someone other than the person being defamed) who understands its defamatory nature.
Exam Note: Beware of fact patterns in which the publication requirement is not met, such as those involving a third party learning about the statement through no fault of the defendant’s, a third party who doesn’t understand the statement to be defamatory, or when no third party hears the statement.
May a person who repeats a defamatory statement be liable for defamation? What if they identify the originator of the statement and express a lack of knowledge as to the truthfulness of the statement?
Yes, even though that person identifies the originator of the statement and expresses a lack of knowledge as to the truthfulness of the statement.
May a person who repeats a defamatory statement be liable for defamation if the communication of the statement to that person was privileged?
Yes.
Are Internet service providers publishers for the purpose of defamation law?
No.
What is libel?
Defamation by words written, printed, or otherwise recorded in permanent form.
What is slander?
Defamation by spoken word, gesture, or any form other than libel is slander.
What is the doctrine of slander per se, and what are the categories to which it applies?
Under the doctrine of slander per se, a plaintiff alleging slander need not plead and prove special damages if the statement defaming her fits into one of four categories:
i) Committing a serious crime
ii) Conduct adversely affecting occupation
iii) Having a loathsome disease
iv) Serious sexual misconduct
