torts 2 deck 11 defamation

Question 1

goal of defamation law

Answer 1

reconcile the interest in reputation with the interest of free speech

Question 2

elements

Answer 2

Publication
An unprivileged communication
False statement of fact 
Fault 
Damage to reputation*

Question 3

publication

Answer 3

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.

Question 4

employee exceptions do not apply when

Answer 4

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.

Question 5

The law of Alabama (and other, but not all, states)

Answer 5

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.

Question 6

What if the statement was uttered with malice?

Answer 6

No, not if the plaintiff cannot prove publication.

Stay tuned for more on malice . . .

Question 7

defamation protects reputation not…

Answer 7

self esteem

Question 8

republication by the plaintiff

Answer 8

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.

Question 9

The Single Publication Rule

Answer 9

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.

Question 10

single pubs and internet

Answer 10

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)

Question 11

newer internet cases

Answer 11

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.”

Question 12

single pub internet modified

Answer 12

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.

Question 13

is knowledge enough

Answer 13

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.

Question 14

The Communications Decency Act of 1996, note 3, p. 934

Answer 14

Immunizes internet service providers from liability for distributing or publishing defamatory material created by others.

Question 15

the ACT

Answer 15

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.

Question 16

defamatory statements old

Answer 16

Elements
False
Statement of fact
“Calculated to” injure the reputation of another
Parmiter v. Coupland (Ex. 1840), p. 940
Is this the rule today?

Question 17

Restatement (2nd) of Torts, p. 940

Answer 17

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.”

Question 18

defamation per se

Answer 18

Statements so harmful to reputation that damages are presumed

Question 19

defamation per quod

Answer 19

Statement requiring extrinsic facts to show their defamatory meaning
And
Damages must be proved.

Question 20

per se

Answer 20

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.

Question 21

per se but….

Answer 21

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)

Question 22

The opinion “privilege”

Answer 22

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

Question 23

What is a false statement of fact?

Answer 23

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 . . .

Question 24

“In my opinion . . .”

Answer 24

“In Illinois, a ‘statement of fact is not shielded from an action for defamation by being prefaced with the words ‘in my opinion,’
But . . .

Question 25

what is not defamation

Answer 25

. . . 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.’”

Question 26

How is harm measured?

Answer 26

What if the statement improved plaintiff’s reputation?

What community matters?

Question 27

The community rule

Answer 27

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.

Question 28

The theory of small group defamation, note 3, p. 953

Answer 28

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.

Question 29

False But Not Defamatory?

Answer 29

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.

Question 30

defamation?

Answer 30

Only if it exposes plaintiff to:
Hatred
Ridicule
Contempt