Intentional torts: defamation Flashcards
Constitutional limitations on defamation
(1) Public officials or figures:
The plaintiff must prove that the person making the statement had actual malice.
(2) Private individuals speaking to a matter of public concern:
The plaintiff must prove that the person who made the statement was negligent with respect to the statement’s falsehood.
The plaintiff can only recover actual damages unless she establishes actual malice.
Defamation
The plaintiff must prove that:
(1) The defendant made a defamatory statement;
(2) Of or concerning the plaintiff;
(3) Published to a third party who understood its defamatory nature; and
(4) Resulting in damages to the plaintiff’s reputation.
Defamatory language
Defamatory language is language that:
(1) diminishes the respect, esteem, or good will toward the plaintiff; or
(2) deters others from associating with the plaintiff.
Defamatory statements must be false in order to be actionable.
Thus, opinions are not actionable as defamation unless they imply a basis in fact, e.g., “I think A is a thief.”
“Of or concerning” requirement
A reasonable person must believe that the defamatory statement refers to the particular plaintiff.
Statements against groups are only actionable as defamation by a member of the group if the group is so small or the context is such that the statement can reasonably be understood to refer to the member of the group.
Publication requirement
The statement must be communicated to a third party.
A person that repeats a defamatory statement may be liable for defamation.
Under Section 230 of the Communications Decency Act, ISPs and Internet platforms are not publishers for purposes of defamation.
Libel
Libel is a written, printed, or recorded defamatory statement, including:
- Television or radio broadcasts;
- Emails and other electronic communications.
A libel plaintiff may recover general damages—i.e., without proof of measurable harm.
Slander
Slander is a spoken defamatory statement.
A slander plaintiff must prove special damages—i.e., economic loss—unless the statement communicates slander per se:
- Commission of a serious crime;
- Unfitness for a trade or profession;
- Having a loathsome disease;
- Severe sexual misconduct.
Defenses to defamation: truth
Truth is an absolute defense, as a true statement is not actionable as defamation.
A statement that contains slight inaccuracies—i.e., one that is substantially true—may nevertheless be considered to be true and therefore not defamatory.
Defenses to defamation: consent
Consent is a defense to defamation.
Defenses to defamation: absolute privilege
Absolute privilege—i.e., complete immunity—applies to statements made:
(1) In the course of judicial proceedings;
(2) In the course of legislative proceedings;
(3) Between spouses; and
(4) In required publications by radio and TV stations.
Defenses to defamation: qualified immunity
Conditional privilege—i.e., qualified immunity—applies to statements including those made:
(1) In the interest of the defendant—e.g., in defense of her reputation;
(2) In the interest of the recipient of the statement; and
(3) Affecting some important public interest.
Defamation: negligence
Most jurisdictions imply a requirement that the defendant be at least negligent with respect to the falsity of the statement.
Actual malice
Actual malice is publishing with:
- knowledge of the statement’s falsity; or
- reckless disregard toward the falsity of the statement.
Mere failure to check facts is not sufficient.
Damages: public officials or figures
Presumed (i.e., general) damages are not available when the person bringing the defamation action is a public official or public figure.
