Defamation

Question 1

Defamation (5 Elements and 2 Defenses)

Answer 1

1. A defamatory statement that specifically identifies the plaintiff
2. Published to a third party
3. Falsity of the defamatory language
4. Fault on the part of the defendant
5. Damage to the plaintiff’s reputation

2 Defenses:
* Consent = Complete Defense
* Privileges

Question 2

A defamatory statement that specifically identifies the plaintiff (1st Element of Defamation)

Answer 2

A defamatory statement = one tending to adversely affect one’s reputation.
* A statement of opinion is actionable only if it appears to be based on specific facts, and an express allegation of those facts would be defamatory.
* Name-calling is insufficient.
* Don’t have to identify P by name - any identifying information sufficient
* Small group = Everybody has claim
* Large group = No one has claim
* P has to be living at time statement was made (Defamation of a deceased person = not actionable)

If the statement is not defamatory on its face, the plaintiff may plead additional facts as “inducement” to establish defamatory meaning by “innuendo.”

Question 3

Published to a third party (2nd Element of Defamation)

Answer 3

Publication means communication of the defamation to a third person who understands it.
* Publication must be to at least 1 other person beyond Plaintiff
* More likely to recover if the statement was cast about broadly
* Publication does not have to be intentional

Question 4

Falsity of the defamatory language (3rd Element of Defamation)

Answer 4

• Under traditional common law, the plaintiff did not have to prove that the statement was false. Rather the defendant was obliged to prove truth as a defense.
• Many states have altered that rule, however, and now require the plaintiff to prove falsity as part of the case-inchief.
• Even in states that still follow the traditional rule, the plaintiff must prove falsity in any case where the plaintiff is constitutionally obligated to prove fault.

Question 5

Fault on the part of the defendant (4th Element of Defamation)

Answer 5

Private Person:
* Type of fault = Negligence
* Jury Considers: Sources of Statement; Who said the statement; What’s their credibility; How many sources did they have; Was the subject time sensative; How newsworthy is the information; How intense is the public interest in the information; How harmful would the statement be if the information was false

Public Figure:
* Type of fault = Knowledge or reckless disregard (Malice)
* Knowledge that the statement was false OR Reckless disregard as to whether it was false

Question 6

Damage to the plaintiff’s reputation (5th Element of Defamation)

Answer 6

Libel: Defamation embodied in permanent form
* Damages presumed

Slander: Spoken / oral defamation
* Plaintiff must prove special damages, unless the defamation falls within one of the slander per se categories (must prove economic harm)
* If economic harm is proven, P can get damages for everything else

Slander per Se: Words so clearly defamatory that ordinary person would understand injury. 4 Categories (Damages Presumed):
* Adversely reflect on the plaintiff’s business or profession
* State that the plaintiff has committed a serious crime (this includes most common law crimes and is sometimes referred to as crimes involving “moral turpitude”)
* Impute that the plaintiff has engaged in serious sexual misconduct
* State that the plaintiff has a loathsome disease (lepracy & sexually transmitted infection)

Question 7

Privileges (Defenses to Defamation)

Answer 7

Absolute Privilege - Can never be lost:
* Communications between spouses
* Officers of government in connection with official work: Remarks made during judicial proceedings, by legislators during proceedings (even if not related to the proceedings), by executive officials, in “compelled” broadcasts

Qualified Privilege - Can be Lost Through Abuse:
* Available on case-by-case basis when public interest is encouraging candor
* References & recommendations (Common Interest Privilege: Qualified privilege for statements made to colleagues within same organization)
* Reports of public hearings or meetings
* Statements made to those who are to take official action (for example, statements made to a parole board about a prisoner)
* Statements made to defend one’s own actions, property, or reputation