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Flashcards in 2. Defamation Deck (18)
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What are the elements of Defamation?

1. P must show that D made a defamatory statement, identifying P,

2. P must show that D published the statement (Publication),

3. P Might need to prove Damages


What is considered Defamatory?

A statement that tends to adversely affect reputation


Can mere insults be considered defamatory by themselves?



How does a statement satisfy the element of Identifying the Plaintiff?

It must specifically identify an individual


What must have happened for a statement to satisfy the element of Publication?

The D must have revealed the statement to at least one person other than the P


Must a publication be done on purpose?


The publication need not be on purpose. (Ex. carelessly leaving an intercom on during an otherwise private conversation)


Does a P have to prove damages in a libel case?

No. In a libel case, damages are presumed.


What are some examples of Slander Per Se?

1. Statements relating to the P’s business or profession

2. Statements that P committed a crime of moral turpitude

3. Statements that imputes unchastity to a woman.

4. A statement that the P suffers from a loathsome disease. (lepracy or vanerial disease)


Does a P have to prove damages in a Slander case?

Slander Per Se - No (It is presumed)

Slander Not Per Se - Yes, The P must prove damages of an actual economic loss.


Three Affirmative Defenses for Defamation

1. Consent

2. Truth

3. Privilege


Who bears the burden of proof for the Truth Affirmative defense?

The Defendant


What are the two kinds of Absolute privilege?

1. Between Spouses

2. Officers of the three branches of government acting within the scope of their official duties. (Often in judicial context, including witnesses and lawyers)


When does a Conditional Privilege arise?

Arise in any situation where there is a public interest in encouraging candor.


What are two examples of situations where there is a public interest in encouraging candor?

1. Recommendations or references - b/c they are only useful if it is honest

2. Statements made to police while they are investigating a crime.


Two conditions for conditional privilege:

1. D must make the statement in good faith

2. D must confine the statement to matters that are relevant


What is a Matter of Public Concern?

Something in which there is general, widespread, public interest.


What are the added elements that a Plaintiff must satisfy to prove defamation when the statement that addresses a matter of public concern?

1. Plaintiff must prove falsity of the statement

2. Plaintiff must demonstrate that the statement was made with some degree of culpability.


What is the level of mental culpability required to prove defamation when the statement that addresses a matter of public concern?

If the P is a public figure, he must prove that it was either a knowing dissemination of a lie, or reckless disregard.

If the P is not a public figure, then they just need to prove negligence.