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Torts FYLSE > Page 44 > Flashcards

Page 44 Flashcards

1
Q

What are actual damages for defamation?

A

All injuries to the plaintiff’s reputation

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2
Q

What are special damages for defamation?

A

Quantifiable money losses due to injury to reputation, like loss of customers, job, etc.

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3
Q

What are general damages for defamation?

A

Nonpecuniary injury to reputation like humiliation, loss of friends, etc.

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4
Q

Why are general damages presumed in defamation?

A

Because of the nature of the statement

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5
Q

How does the jury estimate the amount of presumed general damages for defamation?

A

Based on the extent of injury to reputation

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6
Q

How has the constitution altered common-law defamation?

A

At common law defamation was a strict liability tort, but modernly the status of the individual is important

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7
Q

What is New York Times malice?

A

Deliberate falsity or reckless disregard for the truth of what was published

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8
Q

Is negligence enough for New York Times malice?

A

No, the defendant had to have actually entertained serious doubts about the truthfulness of the publication

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9
Q

What is the standard of proof for New York Times malice?

A

Actual malice with convincing clarity

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10
Q

What is the standard of convincing clarity for New York Times malice?

A

More than a preponderance of the evidence but less than beyond a reasonable doubt

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11
Q

Who has the burden of proof for modern defamation?

A

The plaintiff for all except private concert/private person

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12
Q

What are the different categories included in modern defamation?

A
  • public OFFICIAL
  • public FIGURE
  • PRIVATE PERSON
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13
Q

Who are considered public officials for defamation?

A

People in positions that affect policy and have/appear to have substantial responsibility/control over government affairs

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14
Q

Why is the standard for defamation not as rigorous for public officials?

A

Because the public needs to be able to speak freely and criticize them without being liable

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15
Q

What was the New York Times v Sullivan case about?

A

An ad about police behavior and Martin Luther King that resulted in a Supreme Court ruling that a public official can only prevail in defamation if the defendant acted with malice which is shown by clear and convincing evidence

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16
Q

What status category for defamation are police in?

A

Public Officials

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17
Q

What are the different categories of public figure for modern defamation?

A
  • all-purpose public figure
  • limited public figure
  • involuntary public figure
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18
Q

What is an all-purpose public figure?

A

Someone that has achieved fame and notoriety in all purposes and contexts

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19
Q

What is an example of an all-purpose public figure?

A

Bill Gates or Tiger Woods

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20
Q

What is a limited public figure?

A

Someone that voluntarily injects himself into or is drawn into a particular public controversy becomes a public figure for a small range of issues

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21
Q

What is an involuntary public figure?

A

Someone that becomes a public figure through no purposeful action of their own, they are just in the wrong place at the wrong time

22
Q

What is an example of an involuntary public figure?

A

Someone involved in a famous accident

23
Q

What do public figures have to do to prove defamation?

A

Must show actual malice or reckless disregard for the truth

24
Q

Why is the standard higher for public figures for defamation?

A

Because they risk reputational harm by involving themselves important issues

25
Q

What is the rationale for public figure defamation?

A

The public interest in good faith debate about public people outweighs the interest in protecting those people’s reputations, and no public interest is served if malice is present, so there’s no protection for that

26
Q

If it can be shown that the defendant acted with spite, hatred, or ill will, does that count for malice for defamation?

A

No

27
Q

What are the two categories of private persons for modern defamation?

A

public concern and private concern

28
Q

What can a private person/public concern P recover for modern defamation?

A

Can recover for actual injury (impairment of reputation or standing in the community, humiliation, mental anguish)

29
Q

Is actual malice necessary for private person/public concern for defamation?

A

Only if the plaintiff wants presumed damages or punitive damages

30
Q

If a private person sues for a private concern for defamation, what do they have to do?

A

They do not have to prove actual malice and common-law rules of defamation apply, so strict liability is allowed

31
Q

Is strict liability allowed for private person/public concern for modern defamation?

A

No, there has to be some degree of fault higher than strict liability, which is usually negligence

32
Q

Why is there a lower standard for private persons under modern defamation?

A

Because private people are more vulnerable to injury from defamation and they don’t have the same opportunity for rebuttal that public people have, plus they haven’t voluntarily assumed the risk of adverse comments like public figures have

33
Q

What does a private person have to prove that a publisher did for modern defamation to apply?

A
  • he KNEW the words were false
  • was RECKLESS about their falsity, or
  • was NEGLIGENT about it
34
Q

What are defenses to defamation?

A
  • substantial truth
  • absolute privilege
  • qualified/conditional privilege
  • consent
35
Q

How is substantial truth a defense to defamation?

A

If the communication is true or substantially true, there’s no defamation

36
Q

Do you have to show that something was literally true to be a defense to defamation?

A

No, you just have to show it was substantially true

37
Q

If you say someone killed 12 people when he actually killed 11 people, is that defamation?

A

No, because what you said was substantially true

38
Q

How is absolute privilege a defense to defamation?

A

Certain people are immune to liability

39
Q

Who has the burden of showing that an absolute privilege applies for defamation?

A

D

40
Q

What are the absolute privileges that excuse defamation?

A
  • judicial privileges
  • legislative privileges
  • executive privileges
  • spouses
  • compelled by law
41
Q

Who has a judicial privilege that is a defense to defamation?

A

Judges, jurors, lawyers, and witnesses during litigation

42
Q

What is judicial privilege as a defense to defamation?

A

Judges, jurors, lawyers, and witnesses during litigation aren’t liable for what they say during the legal proceeding as long as it is relevant

43
Q

If you were a witness in a trial, and you say during your testimony that someone is a communist, but that has nothing to do with what you’re testifying about, can you be guilty of defamation?

A

Yes, because judicial privilege wouldn’t apply in that case, because there was no relevancy

44
Q

What is legislative privilege for defamation?

A

Legislators are not liable for anything said in the course of legislative activity

45
Q

What is considered legislative activity for the defense of legislative privilege to defamation?

A

Anything that was said on the floor of the legislature, during hearings, or committee proceedings

46
Q

Does it matter if what was said during legislative activity wasn’t relevant with regard to legislative privilege for defamation?

A

No, the privilege still applies

47
Q

What are executive privileges for defenses to defamation?

A

Policymaking officials of the executive branches of state/federal governments are privileged for things said during the course of their duty

48
Q

What is the spousal privilege for defamation?

A

Anything said between spouses is privileged

49
Q

What is “compelled by law” as a defense to defamation?

A

Broadcast media are sometimes compelled to allow a third person to utilize their facilities, so they are privileged form anything said by the third-party

50
Q

What are the different types of damages available for defamation?

A
  • actual
  • special
  • general
  • punitive

Torts FYLSE (61 decks)

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