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Torts FYLSE > Page 42 > Flashcards

Page 42 Flashcards

1
Q

Defamation problems often also involve what?

A

Invasion of the right of privacy or wrongfully causing emotional distress

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2
Q

What are the two kinds of defamation?

A

slander and libel

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3
Q

What is an easy way to remember what slander is?

A

Slander is spoken

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4
Q

What is slander?

A
  • CL: spoken utterance communicated by sound

- Modern: any message not preserved in permanent form

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5
Q

What must P prove in order to recover for slander?

A

He must prove special damages of a pecuniary nature

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6
Q

What is the exception to having to prove special damages of a pecuniary nature to slander?

A

Slander per se

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7
Q

What is the rationale behind slander per se being an exception to having to prove special damages of a pecuniary nature for slander?

A

It is assumed that the defamation was so severe that the plaintiff must have been harmed

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8
Q

What are the four categories of slander per se?

A
  • questions plaintiff’s competence in his trade/profession
  • suggestion of a loathsome disease
  • serious criminal misbehavior
  • lack of chastity in a woman
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9
Q

What are examples that would constitute suggesting someone has a loathsome disease for slander per se?

A

AIDS, STDs, Leprosy

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10
Q

What are some things that would not count under slander per se as a loathsome disease?

A

Insanity or TB

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11
Q

How has the slander per se element of lack of chastity in women been changed modernly?

A

Includes any sexual misconduct of a man or woman

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12
Q

Slander isn’t actionable without a showing of what?

A

Special damages, meaning those actually suffered by the plaintiff like loss of employment

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13
Q

When can general damages be recovered for slander?

A

If the plaintiff first proves special damages

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14
Q

What is an easy way to remember libel?

A

Representations to the EYE are LIBEL

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15
Q

What is the definition of libel?

A

Permanent expression when defamation is communicated by sight

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16
Q

What are some examples of things that would constitute libel?

A
  • writing
  • photo
  • statue
  • signature
  • movie
  • broadcast
  • brochure
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17
Q

What is commonly used as the standard for libel?

A

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

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18
Q

What is libel per quod?

A

Libel that requires extra extrinsic evidence, because it isn’t obvious on its face, to prove it

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19
Q

What are the two major categories of libel per quod?

A

Inducement and innuendo

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20
Q

What has to be proven for libel?

A

That it was defamatory and that referred to the P

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21
Q

Do you have to have special damages for libel?

A
  • majority: no

- minority: yes

22
Q

What is the rule about repeaters for libel?

A

If you republish what someone else has reported, you are also considered a publisher and liable unless you have a privilege

23
Q

The more permanent, widely disseminated, and planned a message is, the more likely it is what?

A

Libel, and not slander

24
Q

If libel gets republished in spoken form, what is that called?

A

It is still Libel

25
Q

Can slander turn into libel if it gets republished in a permanent form?

A

Yes

26
Q

Libel is a strict liability tort, so defendants are still liable for their what?

A

Unintended and innocent defamations

27
Q

All radio and TV publications are considered what kind of defamation?

A

Libel, even if they are read from a manuscript

28
Q

If slander is reduced to a permanent physical form, like putting it on tape, what does it become?

A

It becomes libel because it is then considered written

29
Q

Why are damages for libel usually presumed?

A

From the fact that it was published, because of the permanency of the form, there is a greater likelihood of damages

30
Q

When are punitive damages sometimes given for libel?

A

If the defamation can be shown to have been uttered with common-law malice

31
Q

What is the effect of a retraction on libel?

A

It can limit general damages if it was fairly and promptly published

32
Q

Retractions only cut off the right to recover what?

A

General damages, and not specific damages

33
Q

What are the elements of defamation?

A
  • intentional/negligent
  • defamatory statement
  • of false facts
  • about the plaintiff
  • published or reproduced
  • damages
34
Q

What is the intentional/negligent element of defamation?

A

Defamation must be intentionally communicated or come from a failure to exercise due care

35
Q

How can you be liable for defamation as a result of failing to exercise due care?

A

Leaving a writing somewhere that it could foreseeably be read by someone else

36
Q

Why is the intentional/negligent element of defamation always met when something is published to the mass media?

A

Because it is obviously intended to reach third persons

37
Q

What is a way that you can be liable for defamation because of negligence?

A

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

38
Q

Why would mailing a letter to a blind person be considered defamation?

A

It was foreseeable he would have to have someone else read it, and that would be a publication

39
Q

What is the defamatory statement element of defamation?

A

Statement must intend to lower the plaintiff’s reputation in the eyes of the community where published or deter others from associating with him

40
Q

How is language interpreted for defamation?

A

It is given its fair and natural meaning as understood by reasonable people of ordinary intelligence

41
Q

In order for a statement to be actionable for defamation it has to be about what?

A

Fact, and not an opinion

42
Q

What are some examples of defamatory statements that wouldn’t be enough to count for defamation?

A

Insults, obvious jokes, cartoons, parodies, pure opinion

43
Q

How do you judge if a statement was fact or opinion for defamation?

A

If a reasonable person would interpret it as fact considering the context and nature of the utterance, it is defamatory

44
Q

How many people must have a lowered impression of a person in order for a defamation to occur?

A

A substantial and respectable minority of the community

45
Q

What is the focus for defamation?

A

How the words were reasonably understood by the third persons they were published to, and not what the speaker meant

46
Q

If no one thought a publication was defamatory, has a plaintiff been harmed?

A

No

47
Q

Publications for defamation are usually read in what context?

A

As a whole considering their context, with the exception of headlines

48
Q

If a publication insinuates something, and can be reasonably interpreted as defamatory, does that count?

A

Yes

49
Q

What are some examples of ways that you can insinuate a defamation?

A

Using quotation marks around words, rhetorical questions, etc.

50
Q

What are the three ways a defamation can happen?

A
  • insinuation
  • implication
  • outright statements
51
Q

What is required for an insinuation to become defamation?

A

That some third person reasonably interpreted it as applying to the plaintiff

52
Q

For defamation, how does the burden of proof change depending on whether it was a public or private concern?

A
  • 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

Torts FYLSE (61 decks)

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