Defamation

Question 1

Defamation - 7 General Elements

Answer 1

1. Defamatory message
2. Certain pleading problems
3. Publication of the message
4. Type of defamation
5. Damages
6. Common Law Defenses
7. Constitutional Issues

Question 2

Defamatory Message - general definitions

Answer 2

A message that lowers the P’s esteem in community or discourages persons from associating with him. Defamatory message holds a P up to hared, ridicule, contempt, or scorn.

Question 3

Defamatory Messages - Statements of Opinion

Answer 3

Generally only statements of fact are actionable. However, expressions of opinion which imply knowledge of certain facts may be sufficient if interpreted as fact by a reasonable person.

Question 4

Defamatory Message - Per Se v. Per Quod

Answer 4

Per Se - apparent on the face of message that it will injure the P.

Per Quod - requires additional extrinsic facts to have defamatory meaning. These must be plead by P.

Question 5

Defamatory Message - Role of Judge and Jury

Answer 5

Judge decides whether a communication could be understood as defamatory. Jury decides whether it was defamatory in case before it.

Question 6

Pleading problems

Answer 6

The party suffering must have been a living person or an existing organization.

Question 7

Pleading problems - Statements about third parties

Answer 7

The statement must defame the plaintiff directly. Statements about third parties, even those closely related, are not actionable unless they also defame P.

Question 8

Pleading problems - Statements about groups

Answer 8

Liability varies according to size of the group and nature of message. If statement concerns all members of a large group, generally no liability. If statement concerns a small group, each member may be sufficiently identified.

Question 9

Publication - General Definition

Answer 9

Any spoken or written statement. P must prove that some reasonable third person received it and understood it to refer to P.

Question 10

Publication - Republishers

Answer 10

Republishers may also be liable to P and may also increase the original publishers liability where such republication is foreseeable.

Question 11

Publication - Participants

Answer 11

All persons who participate in originating a defamatory message are liable as primary publisher. (Editors, publishing companies, authors). Vendors and distributors are only liable if they knew or should have known of defamatory statement.

Question 12

Type of Defamation - Libel

Answer 12

A defamatory message embodied in any relatively permanent form. (sound recording, video, picture, etc)

Question 13

Type of Defamation - Libel Per Quod

Answer 13

Not apparent on its face, p must plead extrinsic facts. Large majority of jdx require proof of special damages for libel per quod.

Question 14

Type of Defamation - Slander

Answer 14

Traditionally spoken defamation. Also, non permanent forms.

Question 15

Type of Defamation - Slander Per Se - Gen Definition

Answer 15

Slander so hurtful that it was presumed that P suffered damages from its utterance.

Question 16

Type of Defamation - Slander Per Se - 4 types

Answer 16

1. Commission of a crime of moral turpitude.
2. Allegation of loathsome disease.
3. Characteristics incompatible with P’s business, profession, or office.
4. Unchastity of a woman. More recently, serious sexual misconduct by both sexes

Question 17

Damages - Three Different types

Answer 17

1. Pecuniary - quantifiable monetary losses.
2. General - non pecuniary - humiliation, loss of friends…
3. Punitive - to punish or deter

Question 18

Damages - Pecuniary

Answer 18

Proof of Pecuniary Damages are necessary to establish a prima facie case in slander and libel per quod (in some jdx).

Question 19

Damages - General Damages

Answer 19

Jury is permitted to presume that P suffered general damages based on injury to reputation. No proof need be offered if the form of defamation is slander per se or “ordinary” libel (not per quod).

Question 20

Damages - Punitive

Answer 20

P must show malice to recover.

Question 21

Defenses - Truth

Answer 21

Traditionally, the D had to prove statement was true. Now, falsity is part of prima facie case unless there is a private plaintiff w/ matter or private concern.

Question 22

Defense - Absolute Privilege - 6 types - must be proven by D.

Answer 22

1. Legislator’s statements uttered while on floor or committee.
2. Participant in judicial proceedings
3. Statements in judicial proceedings (complaints, pleadings, discovery, etc).
4. Statements of policy making officials in executive branches of state or fed government in course of duty.
5. Spouse to spouse.
6. Broadcasters compelled to permit third persons to use facilities are not liable for statements by third parties.

Question 23

Defenses - Qualified Privilege - Defined

Answer 23

Qualified privileges are defenses but can be lost. D bears burden. Lost if D acts with malice, exceeds scope or privilege, does not believe truth of statement.

Question 24

Defenses - Qualified Privilege - Types

Answer 24

1. Statements reas. necessary to protect or advance D’s legit. interest.
2. D who communicates on matter of interest to recipient.
3. D who communicates on matter o public interest to one empowered to protect that interest.
4. Criticism of a matter of public interest.
5. Reports of public hearings.

Question 25

Defense - Consent

Answer 25

General consent principals apply.

Question 26

Constitutional Issues - Public Figures/Officials

Answer 26

P must establish that D acted with malice (NYTimes v Sullivan. Malice is knowledge of falsity or reckless disregard for its truth. Must be proven by clear and convincing evidence. Matters of private concern may eliminate need for public figures to prove malice. Look to degree of dissemination.