torts 2 deck 12 defamation 2 Flashcards
libel
defamation in permanent form
slander
Defamation in spoken words The use of gestures commonly understood as a substitute for spoken words A nod of the head A wave of the hand A sign of the fingers
Can internet postings be defamatory?
Yes—and they were here.
The defendants argued that their postings were “truth, opinion, or hyperbole.”
The jury (and the appellate court) did not agree and concluded that they were defamatory statements.
What was published?
Accusations of lies, hallucinations, mental illness, incompetence, harassment, discrimination, stalking, sexual favors
What else does a plaintiff have to prove?
Are the statements slander or libel? Why do we care? Under California law, slander requires proof of special damages For libel, special damages are presumed. What are “special damages”?
libel
is a defamatory publication communicated “by writing, printing, picture, or other fixed representation to the eye. . . .”
slander
is “orally uttered, and also communications by radio or any mechanical or other means. . . .”
TV broadcasts = slander
The distinction between libel and slander
An “arbitrary and, some would say, archaic distinction”
Court looks to the statutory language
Defendants’ messages were publications by writing.
The only difference between the publications defendants made and traditionally libelous publications is defendants’ choice to disseminate their writings electronically.
Basis of liability—what fault?
Intentional conduct?
Negligence?
Strict liability?
Stay tuned . . .
Actual malice might be required
Liability might depend on intentional or negligent acts.
Elements of Defamation
Publication of a False statement of Fact With fault (?) Damages General Special
“Special” Damages—A Warning:
“By ‘actual damage’ is meant what in the books is usually called ‘special damage.’ This latter expression is either meaningless or misleading.”
G.S. Bower, Actionable Defamation, Article 13, at 33 (1908), p. 963
What Damages Are Required?
The special damages relied upon are not of such a nature as will support the action.”
“The action for slander is given by the law as a remedy for
injuries affecting a man’s reputation or good name by malicious, scandalous and slanderous words, tending to his damage and derogation.”
“It is the injuries affecting the reputation only which are the subject of the action.”
Different than slanderous words actionable per se
In that case, “the law, from their natural and immediate tendency to produce injury, adjudges them to be injurious, though no special loss or damage can be proved.”
What are Reputational Damages?
The loss of a marriage The loss of hospitable gratuitous entertainment Being turned away from a public house The loss of customers to a tradesman Can Terwilliger prove this harm?
Plaintiff loses
“There must be some limit to liability for words not actionable per se . . .”
“The words must be defamatory in their nature; and
Must in fact disparage the character; and
This disparagement must be evidenced by some positive loss arising therefrom directly and legitimately as a fair and natural result.”
must be believable
if everyone thinks joke does not count
Is emotional distress compensable as “special damages”?
Zeran v. Diamond Broadcasting, Inc. (10th Cir. 2000), note, p. 964
Statements were not defamatory per se
“Emotional distress is not a form of special damages,” and
Plaintiff’s de minimis medical expenses:
One visit to physician
One prescription drug purchase
Are insufficient to support the cause of action.
Is more better? (Is this the right question?)
Wood v. Wood (Vt. 1997), note p. 965
Evidence of sleeping problems, loss of appetite, development of a temporary drinking problem, and deteriorating family relationships
demonstrated actual harm.
“We have also recognized that proof of ‘embarrassment and temporary injury to reputation’ would be sufficient to support an award of general damages.”
How are “special damages” proved?
Plaintiff alleged that
he had been engaged in the practice of law for many years;
he has always borne a good reputation as a man and as a lawyer;
he has had a substantial law business that came to him largely from forwarders through a widely spread foreign territory;
he was personally unacquainted with such forwarders;
the defendant’s publication in which the alleged defamatory matter was published, was circulated generally throughout such territory and among those who forwarded business to him;
as a consequence of the circulation of such matter and immediately following such publication and circulation, his practice decreased . . .
CAUSATION STILL A MUST
When “special” damages may be presumed, plaintiff may seek
“general” damages, which must be proved.
GENERAL DAMAGES
The elements of “general” damages are:
(1) injury to reputation;
(2) loss of business;
(3) wounded feelings and bodily suffering resulting therefrom.
General, special, and punitive damages and other remedies
Gertz v. Robert Welch, Inc., (US 1974), note 3, p. 971, (stay tuned for a discussion about general, special, and punitive damages . . . .)
Other remedies:
Injunction, p. 971
Retraction, p. 972
Reply statutes, p. 973
Declaratory Relief and “Libel Tourism,” p. 974
