Kaplan Pgs 670-684 Nuisance and Defamation

Question 1

How do you know if a message is defamatory?

Answer 1

If it lowers the plaintiff in the esteem of the community or discourages third persons from associating with him

Question 2

Generally only statements of fact are actionable as defamatory. What are situations when expressions of opinion might also be the defamatory?

Answer 2

If they imply that the speaker knows facts to be true, or that those facts exist

Question 3

When is a message defamatory per se?

Answer 3

If it is apparent on the face of the message that it will injure the plaintiffs reputation

Question 4

What is defamation per quod?

Answer 4

If a message does not on its face seem to injure a plaintiff’s reputation, the plaintiff has to plead ADDITIONAL EXTRINSIC FACTS that make the message defamatory

Question 5

What are different types of publication that count for defamation?

Answer 5

Any form of communication such as television or radio broadcast, films, plays, novels, cartoons, sculpture, etc.

Question 6

Is it considered to be defamation if the thing you say is only sent to the plaintiff?

Answer 6

No, it has to be communicated to a third person receives it and understands it

Question 7

Who is considered a primary publisher with regard to defamation?

Answer 7

All persons who participate originally in a defamatory message

Ie: the author of a book, the editor, and the company that printed the book could all be liable as primary publishers

Question 8

What is considered to be a publisher when it comes to defamation?

Answer 8

Anyone who repeats the defamatory message. This is even true when the repetition is qualified by words like “alleged“ or is said to not be the opinion of the republishers

Question 9

In what situation would’ve re-publisher cause extra liability to a primary publisher?

Answer 9

If the primary publisher could reasonably have foreseen the defamatory message would be re-published, then he is liable to the plaintive for additional damages caused by the republishing

Question 10

In what situation are people that distribute an original defamatory message as a commodity held to be liable for defamation?

Answer 10

Only if they knew or should have known that the material was defamatory. I.e.: booksellers, newspaper vendors.

Question 11

Can libel only be things that are written?

Answer 11

No, it can be anything that is relatively permanent in form, like a sound recording, video recording, picture, sculpture, etc.

Question 12

Is slander only things that are spoken?

Answer 12

No, it is anything that is not preserved in permanent form

Question 13

Under slander per se for the category that calls for falsely suggesting that a woman is unchaste, would that also be true if the suggestion was about a man?

Answer 13

Yes, likely

Question 14

If it isn’t clear whether a defamatory message is libel or slander, how do you figure it out?

Answer 14

– look at how PERMANENT it is
– look at the AREA it is disseminated in
– look at the EXTENT it was planned instead of spontaneous.

The more permanent the form, widely disseminated, and planned a message is, the more likely it is libel

Question 15

What are the three different types of damages that you can recover for defamation?

Answer 15

– pecuniary damages
– general damages
– punitive damages

Question 16

What are pecuniary damages with regard to defamation, and how do you recover them?

Answer 16

Quantifiable monetary losses suffered by the plaintiff due to the injury to reputation. I.e.: loss of customers or loss of job.

The plaintiff must present evidence of specific actual monetary losses to recover this

Question 17

What are considered to be general damages with regard to defamation?

Answer 17

Nonpecuniary aspects of injury to the reputation such as humiliation or loss of friends.

It is presumed that the plaintiff suffered general damages, so no proof of actual damage is needed

Question 18

In order to prove actual malice for defamation, what does the “convincing clarity” standard mean?

Answer 18

This is essentially the clear and convincing evidence standard. It requires something more than proof by a preponderance of the evidence and less than beyond a reasonable doubt