Defamation

Question 1

What is Defamation?

Answer 1

Injury to a persons reputation

Question 2

Common Law Elements of Defamation

Answer 2

1. Defamatory Statement,
2. Reference to the ∏,
3. Pub. by ▵ to 3d Pers. &
4. Damage to ∏’s Reputation

Question 3

What is a defamatory Statement?

Answer 3

Allegation of fact that harms rep. of ∏ by reflecting negatively on a char. trait

• Insults or name calling = NOT defamatory

Question 4

Reference to Plaintiff

Answer 4

Statement must explicitly ID ∏ (“of or concerning” ∏)

• ∏ must be alive
• Corp. may be defamed but only if st. prejudices the corp. in its course of bus. or deters others from dealing w/ the corp.

Question 5

Publication by Defendant to Third Person

Answer 5

Seen or heard by someone other than the ∏, Must be

• Intentional - Intent to publish, not intent to defame OR
• Negligent - Pub. doesn’t have to be intentional, Negligent pub. is suff.

Question 6

Damage to Plaintiff’s Reputation

Answer 6

Whether damages are req. for ∏ to succeed depends on type of defamation alleged (libel, slander or slander per se)

Question 7

Libel

Answer 7

Published in durable form (written words, film, CD, DVD, radio show, Blogging)

• Damages Presumed - ∏ in libel case doesn’t need to show damages to succeed in a libel action

Question 8

Slander

Answer 8

1. Defamation
2. Published in some fleeting form (spoken words or sounds, sign lang., gestures)
3. Special damages - Must be econ. harm for ∏ to prevail in a slander action that is not based on a slander per se

Question 9

Slander Per Se

Answer 9

Damages Presumed - 4 Kinds of slander per se that ∏ doesn’t need to show damages to succeed in defamation action

1. Crimes of Moral Turpitude - Statements accusing ∏ of crimes of moral turpitude
2. Loathsome Disease - St. alleging that ∏ suffers from venereal disease or other loathsome disease
3. Sexual Misconduct - St. imputing serious sexual misconduct to the ∏ (Gender Specific - Only applies to women)
4. Adversely Reflects on One’s Conduct in Business, profession, Trade, or Office - St. adv. reflecting on a persons fit. to conduct their bus.

Question 10

First Amendment Privilege (Constitutional Requirements)

When do Constitutional issues arise in regard to defamation?

Answer 10

Const. issues w/ defamation arise when the def. refers to a pub. figure or involves a matter of pub. concern

Question 11

First Amendment Privilege (Constitutional Requirements)

What must Plaintiff prove if the defamation refers to a public figure or deals with a matter of public concern?

Answer 11

Const. req. ∏ to prove 2 additional elements when defam. refers to pub. figure or deals w/ matter of pub. concern. ∏ must show:

1. Defamation is False AND
   
   • Burden of Proof = ∏ - Shifts burden of proof from ▵ (truth as complete def.) to the ∏ (falsity becomes an element of the COA)
2. Fault by the ▵
   
   • Pub. Official or Figure = Malice - Malice on part of ▵ must be proved
     
     • Knowledge that statement is false OR
     • Reckless Disregard - ▵ in fact entertained serious doubts as to the truth of her pub.

Question 12

First Amendment Privilege (Constitutional Requirements)

Private indiv. brings defamation action

Answer 12

Private Person = Negligence

• In defam. actions brought by priv. persons that involve matter of pub. concern,
  
  • ∏ only need to prove neg. by the ▵ regarding the falsity of the statement

Question 13

Defamation Defenses

Answer 13

1. Consent
2. Absolute Priv.
3. Truth
4. Qualified Priv.

Question 14

Defense - Consent

Answer 14

(Complete Defense) - ∏ consents to the publication

Question 15

Defense - Absolute Privilege

Answer 15

Can’t be Lost - Based on the state or identity of the speaker

• Motive of speaker is irrelevant

Question 16

Defense - Absolute Privilege

Categories

Answer 16

1. Husband & Wife - Any co. b/w H & W is absolutely Priv.
2. Judicial Proceedings - Judges, layers, parties, witnesses have abs. priv. for any statements made during a judicial proceeding, regardless of the motives for these statements
3. Legislative Proceedings - Statements made by leg. while acting in leg. capacity are abs. priv.
4. Gov’t Officials - Statements made by gov’t officials in the course of their position as gov’t officials are abs. priv.
5. Compelled Broadcasts - One who is req. by law to pub. a defamatory matter is abs. priv. to publish it

Question 17

Defense - Qualified Privilege

Answer 17

Based on the circ. or occasion of the remarks (where there is a pub. int. in encouraging candor)

• This priv. will be lose if abused

Question 18

Defense - Qualified Privilege

Forefiture of Qualified Priv.

Answer 18

Forfeited if abused (malice, ulterior motive or excessive pub.)

• Ulterior Motive - Qual. Priv. forfeited if prim. purp. of st. is something other than protecting the int. for which the priv. is given
• Excessive Publication - ▵ will lose qual. priv. if the st. is not w/in the scope of priv.
  
  • Made to persons to whom pub. not reas. nec. OR
  • More Damaging than Reas. Nec.

Question 19

Defense - Qualified Privilege

Forefiture of Qualified Priv. - Actual Malice

Answer 19

Actual Malice = Knowledge or Reckless Disregard

• ▵ must have reas. basis for the st. made
• Priv. lost if the ▵ knew the st. was false when made or acted in reckless disregard as to whether it was true

Question 20

Defense - Qualified Privilege

Forefiture of Qualified Priv. - Ulterior Motive

Answer 20

Qual. Priv. forfeited if prim. purp. of st. is something other than protecting the int. for which the priv. is given

Question 21

Defense - Qualified Privilege

Forefiture of Qualified Priv. - Excessive Publication

Answer 21

▵ will lose qual. priv. if the st. is not w/in the scope of priv.

• Made to persons to whom pub. not reas. nec. OR
• More Damaging than Reas. Nec.

Question 22

Defense - Qualified Privilege

Categories of Qualified Privilege

Answer 22

Arises in socially useful contexts ➞ potentially defam. st. is relevant to some socially useful purpose

1. Report of Public Proceedings - Court cases, legislative hearings
2. Protection of Publisher’s Interest - Qual. Priv. to act for the protection of publisher’s int. (protection of one’s prop. or reputation)
3. Protection of Recipient’s Interests - Qual. Priv. to act for the protection of the recipient’s int. (job ref., letters of rec. , credit reporting agencies)
   
   • Key - St. was made in response to a request not vol. by the ▵
4. Common Interest - Circ. lead any one of several persons having com. int. in a particular subj. matter correctly or reas. believe that there is info that another sharing the com. int. is entitled to know
   
   • e.g. common prop, bus. and prof. int. as well as members of religious, fraternal and charit. assoc.
5. Communication to One Who May Act in the Public Interest - St. made to pers. who has the power to act in the pub. int. (pub. official)
   
   • E.g. private citizen reports a crime to the police or district attorney

Question 23

What are the steps to analyzing a defamation claim?

Answer 23

1. Determine if the communication is defamatory
2. Evaluate pleading issues
3. Evidence of Publication
4. Determine what type of defamation it is
   
   • Libel or slander
5. Determine if common law priv. are applicable
6. Analyze any first amendment issues

Question 24

Can the tort claim for defamation survive death?

Answer 24

No, the dead do not have defamation claims

Question 25

How can a plaintiff assert defamation when the plaintiff is not named in the published statement?

Answer 25

The plaintiff must prove that it is of or concerning her

Question 26

What is the limit on scope of defamation?

Answer 26

It only applies to identifiable persons * If said about group, not defamation

Question 27

What is publication in defamation?

Answer 27

D intentionally or negligently permitted someone other than the P to come into contact with the defam. statement

Question 28

What are the elements of publication?

Answer 28

1. D intentionally or neg. permitted 2. A third party to hear the defamation

Question 29

What is the republication rule?

Answer 29

Others who repeat the defamation will be liable for defamation

Question 30

What is the effect of slander per se?

Answer 30

P doesn't have to prove special damages, they are presumed

Question 31

In a defamation case, what does the P have the burden to prove ?

Answer 31

That the communication was false

Question 32

What is the effect of an absolute privilege on a defamation claim?

Answer 32

D will not be liable for defamation * It is a safe harbor for defamation

Question 33

When does the absolute privilege for defamation occur?

Answer 33

1. Co. b/w spouses 2. Statements made on the floor of a legislature 3. Statements made among high ranking gov't officials 4. Statements made during judicial proceedings

Question 34

When do qualified privileges for defamation apply?

Answer 34

1. Bus. Assoc., meaning members of a group with a common interest AND 2. Providing a reference in ajob setting

Question 35

When does a D lose an otherwise available qualified priv. for defamation ?

Answer 35

1. When D excessively publishes 2. When D knows the statement is false OR 3. When D is reckless as to the truth or falsity of the statement

Question 36

What must a claim est. if defamation relates to a pub. official in capacity as a pub. official?

Answer 36

1. Clear and convincing evidence 2. D knew info was false or recklessly disregarded the truth or falsity of the statement

Question 37

Who are considered Public Figures for Defamation?

Answer 37

1. All purpose public figures - household names 2. Limited public figure - injects themselves into a controv. trying to have an affect on the outcome

Question 38

What must a claim est. if defamation relates to a pub. figure in capacity as a pub. figure

Answer 38

1. Clear and convincing evidence 2. D knew the published info was false or recklessly disregarded the truth or falsity of the statement

Question 39

What are the different standards of proof for defamation claims?

Answer 39

1. Public official/Public Figure - Malice 2. Private Person & Matter of Pub. Concern - Negligence 3. Private Person & Matter of Only Private Concern - Publication only

Question 40

What are the damages available for defamation?

Answer 40

* General Damages are presumed * Special Damages must be shown * Unless defamation is libel or slander per se