2. Defamation

Question 1

Defamation Requirements:

Answer 1

1. Defamatory statement
   ♣ statement of facts
2. Concerning P
3. Publication
   ♣ statement must be intentionally or negligently made to 3rd person
4. Harms P reputation
5. Falsity and fault
   ♣ Only required if statement involves a matter of public concern or a public figure or official.
6. Damages

Question 2

Constitutional Consideration to Defamation:

Answer 2

1st Amendment considerations arise when defamation involves a public concern:
♣ Public figure
♣ Public official
♣ Public concern

ADDITIONAL ELEMENTS:
♣ Falsity: P must prove the statement was false
♣ Fault: P must prove D was at fault
• Standards differ for public vs. private figure:

Public official or figure: actual malice standard (knowledge of the statement’s falsity or reckless disregard to whether it was false)

Private figure: negligent standard

Question 3

Defamation Damages

Libel

Slander

Slander per se

Answer 3

Damages depend on whether defamatory statement constitutes libel, slander, slander per se

♣ Libel:
• It’s a written defamatory statement
• general damages are presumed; P does not have to prove special damages

♣ Slander:
• It’s a spoken defamatory statement
• P must prove special damages unless the statement constitutes slander per se
o Special damages: specific economic loss

♣	Slander per se  
o	1. Woman’s chasity
o	2. Crime of moral turpitude
o	3. Loathsome disease
o	4. Concerns and adversely reflects on P's business or professional reputation.

Question 4

Defenses to defamation:

Answer 4

Consent, truth and privilege may be valid defenses to defamation

♣ Consent

♣ Truth (A complete defense to a defamation claim)

♣ Privilege
• Absolute privilege:
o Protects statements by government officials in their official capacity
• Qualified privilege:
o D’s liability for defamatory statement is limited if the purpose of the statement is to promote truthfulness and/or related to fair comment and criticism
o (e.g. letter of recommendation, book review)