torts 2 deck 11 defamation Flashcards
goal of defamation law
reconcile the interest in reputation with the interest of free speech
elements
Publication An unprivileged communication False statement of fact Fault Damage to reputation*
publication
Essential to defamation (libel is written; slander is spoken)
Must be made to one or more third parties.
Here?
The letter was dictated by the company president to the company stenographer who transcribed it.
Both employees of a single corporate entity.
Not a publication.
employee exceptions do not apply when
A corporate defendant communicates libelous matter to
employees who had no part in producing the writing;
employees whose duties were unconnected with the process by which the letter was produced.
The law of Alabama (and other, but not all, states)
If the language complained of was uttered
Only to the complaining party
or
To his agent representing him in the matter discussed in the communication, then . . .
It is not a publication,
Especially when the communication was solicited by the plaintiff or his agent.
What if the statement was uttered with malice?
No, not if the plaintiff cannot prove publication.
Stay tuned for more on malice . . .
defamation protects reputation not…
self esteem
republication by the plaintiff
Kiblitsky v. Lutheran Medical Center (N.Y. Sup. Ct. 2011), note 3, p. 929
When an employee is fired and has to tell a prospective employer the reason given by his former employer for firing him.
The former employer told no one but the employee herself.
She was then forced to report the reason to future employers and also the NY State Board of Education in the process of renewing her license.
The court rejected her claim.
The Single Publication Rule
The publication of a defamatory statement in a single issue of a newspaper,
or a single issue of a magazine,
although such publication consists of thousands of copies widely distributed,
is, in legal effect, one publication
which gives rise to one cause of action.
single pubs and internet
The ongoing availability of information on the Internet does not constitute a continuing wrong or new publication.
The “single publication” rule applies.
The mere addition of unrelated information to the Web site is not a republication.
Other courts agree, even in cases where:
A third party reposted the statement elsewhere on the Internet
Created hypertext links to the previously published statement
Changed the URL where the story was posted
(note 2, p. 932—33)
newer internet cases
Larue v. Brown (Ariz. Ct. App. 2014), note 2, p. 933
A husband and wife sued the wife’s ex-husband and his wife for defamation, based on Internet articles alleging that the husband had molested the wife’s four-year-old daughter.
The defendants had replied to comments made in response to their original defamatory articles.
The court held these were republications (not barred by the statute of limitations), even though they “were displayed directly beneath the original articles, thereby implying they were supplements to the original articles.”
single pub internet modified
The single publication rule applies to an internet article, but . . .
If a material and substantive change is made to the article’s defamatory content,
then the modified article will constitute a republication, restarting the statute of limitations.
is knowledge enough
What if a librarian knows that a book contains defamatory material?
Church of Scientology of Minn. v. Minn. State Med. Ass’n Foundation (Minn. 1978), note 3, p. 934
“Those who merely deliver or transmit defamatory material previously published by another
Will be considered to have published the material only if they knew, or had reason to know, that the material was false and defamatory.”
Courts also consider whether a librarian has the discretion over whether to make or withhold publication.
The Communications Decency Act of 1996, note 3, p. 934
Immunizes internet service providers from liability for distributing or publishing defamatory material created by others.
the ACT
Does not immunize or protect an internet provider from liability for content it creates or develops.
Here, the story was written by Drudge.
No substantive or editorial involvement by AOL.
AOL was “nothing more than a provider of an interactive computer service . . .”
Not liable under the Act.
defamatory statements old
Elements False Statement of fact “Calculated to” injure the reputation of another Parmiter v. Coupland (Ex. 1840), p. 940 Is this the rule today?
Restatement (2nd) of Torts, p. 940
A communication is defamatory if it “tends” so to . . . “tends” or is “calculated”? What kind of a tort is Defamation? A communication is defamatory if it tends to . . . To do what? To harm the reputation of another What does this mean? “to lower the plaintiff in the estimation of the community or to deter third persons from associating or dealing with him.”
defamation per se
Statements so harmful to reputation that damages are presumed
defamation per quod
Statement requiring extrinsic facts to show their defamatory meaning
And
Damages must be proved.
per se
Five categories of defamation per se
Commission of a criminal offense (punishable with prison)
Infection with a venereal disease
Inability to perform or want of integrity in the discharge of duties of public office
Fornication or adultery
Words that prejudice a party in his trade, profession, or business.
per se but….
If the statement (even if it falls within a per se category) might reasonably be interpreted to refer to someone else,
or could be innocently interpreted,
It will not be actionable per se.
(damages are not presumed)
The opinion “privilege”
Opinions may include statements like “this is the worst food I have every tasted” and they cannot be defamatory.
Statements like “in my opinion, John is a liar and a thief” may be defamatory.
Milkovich v. Lorain Journal Co. (US 1990), note 2, p. 945
What is a false statement of fact?
An “author’s opinion about business ethics” is not defamatory under Illinois law.
An allegation of greed is not defamatory.
Name calling is not defamatory.
Opinions are not defamatory
But . . .
“In my opinion . . .”
“In Illinois, a ‘statement of fact is not shielded from an action for defamation by being prefaced with the words ‘in my opinion,’
But . . .
what is not defamation
. . . if it is plain that the speaker is expressing a subjective view,
an interpretation,
a theory, conjecture, or surmise,
rather than claiming to be in possession of objectively verifiable facts,
the statement is not actionable.’”
How is harm measured?
What if the statement improved plaintiff’s reputation?
What community matters?
The community rule
If the advertisement obviously would hurt the plaintiff in the estimation of an important and respectable part of the community,
liability is not a question of a majority vote.
That it will be known by a large number and will lead an appreciable fraction of that number to regard the plaintiff with contempt is enough to do her practical harm.
The theory of small group defamation, note 3, p. 953
Elias v. Rolling Stone LLC (2d Cir. 2017)
Article in the magazine implied that seven members of the Phi Kappa Psi fraternity at UVA participated in or turned a blind eye to an allegedly brutal gang rape.
Totally fabricated.
But . . .
Even though the individual rapists were not named, the plaintiffs’ claim could stand.
“Because a reader of the Article could plausibly conclude that each member of Phi Kappa Psi was implicated either directly or indirectly in the alleged rapes,
plaintiffs can proceed under a theory of small group defamation,”
given there were only 53 members in the frat.
False But Not Defamatory?
Decker v. The Princeton Packet, Inc. (NJ 1989), note 4, p. 954
Obituary of a living person
Not defamatory because it “did not impute to the plaintiff any wrong and did not hold her up to ridicule.”
Radcliffe v. Evans (QB 1892), note 4, p. 954
Newspaper report that plaintiff was no longer working as an engineer and boilermaker.
Not defamatory because the words did not reflect on the plaintiff’s character.
defamation?
Only if it exposes plaintiff to:
Hatred
Ridicule
Contempt
