Page 42 Flashcards
Defamation problems often also involve what?
Invasion of the right of privacy or wrongfully causing emotional distress
What are the two kinds of defamation?
slander and libel
What is an easy way to remember what slander is?
Slander is spoken
What is slander?
- CL: spoken utterance communicated by sound
- Modern: any message not preserved in permanent form
What must P prove in order to recover for slander?
He must prove special damages of a pecuniary nature
What is the exception to having to prove special damages of a pecuniary nature to slander?
Slander per se
What is the rationale behind slander per se being an exception to having to prove special damages of a pecuniary nature for slander?
It is assumed that the defamation was so severe that the plaintiff must have been harmed
What are the four categories of slander per se?
- questions plaintiff’s competence in his trade/profession
- suggestion of a loathsome disease
- serious criminal misbehavior
- lack of chastity in a woman
What are examples that would constitute suggesting someone has a loathsome disease for slander per se?
AIDS, STDs, Leprosy
What are some things that would not count under slander per se as a loathsome disease?
Insanity or TB
How has the slander per se element of lack of chastity in women been changed modernly?
Includes any sexual misconduct of a man or woman
Slander isn’t actionable without a showing of what?
Special damages, meaning those actually suffered by the plaintiff like loss of employment
When can general damages be recovered for slander?
If the plaintiff first proves special damages
What is an easy way to remember libel?
Representations to the EYE are LIBEL
What is the definition of libel?
Permanent expression when defamation is communicated by sight
What are some examples of things that would constitute libel?
- writing
- photo
- statue
- signature
- movie
- broadcast
- brochure
What is commonly used as the standard for libel?
Strict liability standard and plaintiff only has to prove defendant published defamatory material about the plaintiff, then he can get damages without having to prove falsehood
What is libel per quod?
Libel that requires extra extrinsic evidence, because it isn’t obvious on its face, to prove it
What are the two major categories of libel per quod?
Inducement and innuendo
What has to be proven for libel?
That it was defamatory and that referred to the P
Do you have to have special damages for libel?
- majority: no
- minority: yes
What is the rule about repeaters for libel?
If you republish what someone else has reported, you are also considered a publisher and liable unless you have a privilege
The more permanent, widely disseminated, and planned a message is, the more likely it is what?
Libel, and not slander
If libel gets republished in spoken form, what is that called?
It is still Libel
Can slander turn into libel if it gets republished in a permanent form?
Yes
Libel is a strict liability tort, so defendants are still liable for their what?
Unintended and innocent defamations
All radio and TV publications are considered what kind of defamation?
Libel, even if they are read from a manuscript
If slander is reduced to a permanent physical form, like putting it on tape, what does it become?
It becomes libel because it is then considered written
Why are damages for libel usually presumed?
From the fact that it was published, because of the permanency of the form, there is a greater likelihood of damages
When are punitive damages sometimes given for libel?
If the defamation can be shown to have been uttered with common-law malice
What is the effect of a retraction on libel?
It can limit general damages if it was fairly and promptly published
Retractions only cut off the right to recover what?
General damages, and not specific damages
What are the elements of defamation?
- intentional/negligent
- defamatory statement
- of false facts
- about the plaintiff
- published or reproduced
- damages
What is the intentional/negligent element of defamation?
Defamation must be intentionally communicated or come from a failure to exercise due care
How can you be liable for defamation as a result of failing to exercise due care?
Leaving a writing somewhere that it could foreseeably be read by someone else
Why is the intentional/negligent element of defamation always met when something is published to the mass media?
Because it is obviously intended to reach third persons
What is a way that you can be liable for defamation because of negligence?
If the defendant communicates directly to the plaintiff, but a third person overhears the communication and the defendant had reason to foresee that would happen and a reasonable way to avoid it
Why would mailing a letter to a blind person be considered defamation?
It was foreseeable he would have to have someone else read it, and that would be a publication
What is the defamatory statement element of defamation?
Statement must intend to lower the plaintiff’s reputation in the eyes of the community where published or deter others from associating with him
How is language interpreted for defamation?
It is given its fair and natural meaning as understood by reasonable people of ordinary intelligence
In order for a statement to be actionable for defamation it has to be about what?
Fact, and not an opinion
What are some examples of defamatory statements that wouldn’t be enough to count for defamation?
Insults, obvious jokes, cartoons, parodies, pure opinion
How do you judge if a statement was fact or opinion for defamation?
If a reasonable person would interpret it as fact considering the context and nature of the utterance, it is defamatory
How many people must have a lowered impression of a person in order for a defamation to occur?
A substantial and respectable minority of the community
What is the focus for defamation?
How the words were reasonably understood by the third persons they were published to, and not what the speaker meant
If no one thought a publication was defamatory, has a plaintiff been harmed?
No
Publications for defamation are usually read in what context?
As a whole considering their context, with the exception of headlines
If a publication insinuates something, and can be reasonably interpreted as defamatory, does that count?
Yes
What are some examples of ways that you can insinuate a defamation?
Using quotation marks around words, rhetorical questions, etc.
What are the three ways a defamation can happen?
- insinuation
- implication
- outright statements
What is required for an insinuation to become defamation?
That some third person reasonably interpreted it as applying to the plaintiff
For defamation, how does the burden of proof change depending on whether it was a public or private concern?
- public concern: P must prove falsity
- public figure: P must prove knowledge that statement was false or reckless disregard
- private person but public matter: P must prove falsity was attributable to at least negligence
