Part Two: Defamation Flashcards
What are the FIVE types of actions that arise in “Harm to Economic and Dignitary Interests”?
- Defamation
- Invasion of Right to Privacy
- Misrepresentation
- Intentional;
- Negligent
- Interference with Business Relations
- Wrongful Institution of Legal Proceedings
- Malicious Prosecution
- Abuse of Process
What are the elements for “Defamation”?
- “Defamatory” language;
- “of or concerning” the P;
- “publication” by D to a 3rd party;
- damage to P’s reputation
If it is a “matter of public concern” –> there are two additional constitutionally required elements:
- FALSITY of the defamatory language; and
- FAULT on part of defendant
What is “Defamatory language” for the purpose of establishing “Defamation”?
“Defamatory language” = language tending to adversely affect one’s reputation
- Statement of opinion –> Only defamatory if it:
1. appears to be based on SPECIFIC FACTS, and
2. an EXPRESS ALLEGATION of those facts would be defamatory - Name calling –> insufficient
For the purpose of establishing “Defamatory language” to establish “Defamation,” - what is the rule if the statement is not defamatory on its face?
If the statement is NOT defamatory on its face —> Plaintiff may plead additional facts as “inducement” to establish defamatory meaning by “innuendo”
With regards to establishing “Defamation” - what is the “living person requirement”?
- Any living person may be defamed.
- Defamation of deceased person is NOT actionable
May a corporation or other entity be defamed?
A corporation, unincorporated association or partnership MAY be defamed.
Example –> statements about financial condition, integrity, honesty etc.
With regards to establishing “Defamation” - what does it mean for a statement to be “of or concerning Plaintiff”?
“Of or concerning P” = a reasonable reader, listener, or viewer would understand that the defamatory statement referred to P
With regards to establishing “Defamation” and the element of “of or concerning Plaintiff”, what is the rule if the statement does not refer to P on its face?
If the statement does NOT refer to P on its face, extrinsic evidence may be offered to establish that the statement refers to Plaintiff.
This is known as “PLEADING COLLOQUIUM”
With regards to establishing “Defamation” and the element of “of or concerning Plaintiff”, what is the rule if the statement refers to a group?
- If statement refers to ALL members of SMALL group, each may establish that the statement is “of and concerning him” by establishing he is a group member;
- If statement refers to LARGE GROUP, NO member can prove it is “of or concerning him”
- If statements refers to SOME members of SMALL group, P can recover IF a REASONABLE PERSON would view the statement as referring to P
With regards to establishing “Defamation” - what is the “publication” requirement?
“Publication” = communication to 3rd party who understands it. (Cannot be to Plaintiff).
- publication can be made INTENTIONALLY or NEGLIGENTLY
- it is the INTENT to publish, not the intent to defame, that is the requisite intent
- each repetition is a separate publication, however – for newspapers, magazines, most states have adopted a “single publication” rule which treats all copies as a single publication
Who may be liable for defamation?
- “Primary publishers” (newspaper, TV station, etc) –> liable to same extent as author
- “Secondary publishers” (one selling papers or playing tapes) –> liable ONLY if he KNOWS or SHOULD KNOW of the defamatory content.
- NOTE: ISP is not treated as a publisher when a user posts defamatory content.
With regards to “Defamation” what is the rule re: “Damage to Plaintiff’s Reputation”?
The types of damages P must prove depends on the type of defamation (libel or slander) involved.
“libel” = written or printed publication of defamatory language. Plaintiff does NOT have to prove special damages. GENERAL DAMAGES are PRESUMED.
- NOTE: minority position distinguishes btwn libel per se and libel per quod (not libel on its face).
- NOTE: defamation in ratio/television is treated by most courts as libel
“slander” = spoken defamation. Plaintiff must prove special damages UNLESS it falls within “slander per se” categories:
- Adversely reflect on one’s conduct in a business/profession;
- One has a loathsome disease;
- One is or was guilty of a crime involving moral turpitude; or
- a woman is unchaste
If “defamation” involves a “matter of public concern”, what additionally must plaintiff prove?
In addition to the common law case, they must prove
- Falsity of the statement; and
- Fault on the part of the defendant (which type of fault depends on type of P)
If “defamation” involves a “matter of public concern”, what are the rules regarding showing “fault”?
The type of fault that a P must prove depends on P’s status
- Public Official or Public Figure —> must prove “actual malice”
- Private person –> must prove negligence regarding the falsity
What is a “matter of public concern”?
- to determine whether the defamatory statement involves a matter of public concern or private concern, courts will look at the content, form, and context of the publication.
- if it involves a public figure, it’s always a matter of public concern
With regards to “Defamation” what is “actual malice”?
“Actual Malice” =
- knowledge that statement was false; OR
- reckless disregard as to whether it was false
- Note: This is a SUBJECTIVE test.
- Defendant’s spite or ill will is NOT ENOUGH to constitute malice.
- Deliberately altering a quote MAY constitute malice if the alteration causes a MATERIAL CHANGE in the meaning
With regards to “Defamation” what constitutes a “public figure”?
“public figure” either has pervasive fame or notoriety OR voluntarily assumes a central role in a particular public controversy
With regards to “Defamation” - what are the rules regarding “FAULT” and “DAMAGES” for the following scenario:
Public official or figure/matter of public concern
Fault:
“Actual Malice” - knowledge of falsity OR reckless disregard for falsity
Damages Recoverable:
Presumed damages for libel or slander per se. Punitive damages may be available.
With regards to “Defamation” what constitutes “actual injury”?
“actual injury” = is NOT limited to economic damages. It may include damages for impairment to reputation and personal humiliation as long as P has evidence of those damages (ie…there are no presumed damages).
With regards to “Defamation” - what are the rules regarding “FAULT” and “DAMAGES” for the following scenario:
Private person/matter of public concern
Fault: At least negligence as to statement’s truth or falsity
Damages Recoverable:
- only for proved “actual injury” if only negligence is shown. If P proves “actual malice”, presumed and punitive damages may be available
With regards to “Defamation” - what are the rules regarding “FAULT” and “DAMAGES” for the following scenario:
Private person/matter of private concern
Fault required:
No fault need be proved (unless required by state law)
Damages Recoverable:
- presumed damages under common law rules (libel or slander per se). Punitive damages where appropriate.
What are the FOUR defenses to “defamation”?
- Consent
- Truth
- Absolute Privilege (can never be lost)
- Qualified Privilege (can be lost through abuse)
With regards to “Defamation” what is the rule regarding the defense of “consent” ?
- Consent is a complete defense to defamation
- The rules applying to intentional torts apply here
With regards to “Defamation” what is the rule regarding the defense of “truth” ?
-In common law case, P does not need to prove falsity, because Defamatory statements are presumed false. D has burden of proving truth as a defense.
With regards to “Defamation” what is the rule regarding the defense of “absolute privilege” (5 scenarios) ?
“absolute privilege” - can never be lost.
Applies to:
- remarks made during judicial proceedings;
- by legislators during proceedings;
- by federal executive officials;
- in compelled broadcasts;
- between spouses
With regards to “Defamation” what is the rule regarding the defense of “qualified privilege”?
“qualified privilege” - can be lost through abuse.
Applies to:
- reports of official proceedings;
- statements in interest of publisher, defense of one’s actions, property, or reputation;
- statements in interest of recipients and
- statements in common interest of publisher and recipient
Qualified privilege may be lost if:
- statement is not within scope of privilege; OR
- speaker acted with “actual malice”
-Note: Defendant bears burden of showing privilege exists
With regards to “Defamation” what is the rule regarding “mitigating factors”?
“mitigating factors” - are not defenses to liability, but may be considered in determining damages
- no malice
- retraction;
- anger of speaker provoked by P
