torts 2 deck 12 defamation 2

Question 1

libel

Answer 1

defamation in permanent form

Question 2

slander

Answer 2

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

Question 3

Can internet postings be defamatory?

Answer 3

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

Question 4

What else does a plaintiff have to prove?

Answer 4

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”?

Question 5

libel

Answer 5

is a defamatory publication communicated “by writing, printing, picture, or other fixed representation to the eye. . . .”

Question 6

slander

Answer 6

is “orally uttered, and also communications by radio or any mechanical or other means. . . .”
TV broadcasts = slander

Question 7

The distinction between libel and slander

Answer 7

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.

Question 8

Basis of liability—what fault?

Answer 8

Intentional conduct?
Negligence?
Strict liability?

Question 9

Stay tuned . . .

Answer 9

Actual malice might be required

Liability might depend on intentional or negligent acts.

Question 10

Elements of Defamation

Answer 10

Publication of a
False statement of
Fact
With fault (?)
Damages
General 
Special

Question 11

“Special” Damages—A Warning:

Answer 11

“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

Question 12

What Damages Are Required?

Answer 12

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.”

Question 13

Different than slanderous words actionable per se

Answer 13

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.”

Question 14

What are Reputational Damages?

Answer 14

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?

Question 15

Plaintiff loses

Answer 15

“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.”

Question 16

must be believable

Answer 16

if everyone thinks joke does not count

Question 17

Is emotional distress compensable as “special damages”?

Answer 17

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.

Question 18

Is more better? (Is this the right question?)

Answer 18

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.”

Question 19

How are “special damages” proved?

Answer 19

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

Question 20

When “special” damages may be presumed, plaintiff may seek

Answer 20

“general” damages, which must be proved.

Question 21

GENERAL DAMAGES

Answer 21

The elements of “general” damages are:

(1) injury to reputation;
(2) loss of business;
(3) wounded feelings and bodily suffering resulting therefrom.

Question 22

General, special, and punitive damages and other remedies

Answer 22

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