Defamation

Question 1

Definition of Defamation

Answer 1

A communication that tends to damage the plaintiff’s reputation in the popular sense.

Question 2

What does it mean to damage a person’s reputation?

Answer 2

To diminish the respect, good will, confidence or esteem in which the plaintiff is held in the eyes of others, or to excite adverse or unpleasant feelings about the plaintiff.

Question 3

What is the policy interest behind the tort of defamation?

Answer 3

It is designed to provide protection against injury to an individual’s reputation and good name.

Question 4

What are the two types of defamation?

Answer 4

Slander (oral)

Libel (written or printed)

Question 5

What is the test for defamation?

Answer 5

1) A false statement;
2) “Of and concerning” the plaintiff;
3) A publication of the false statement;
4) Injury to reputation.

Question 6

What is required for the element of “injury of reputation”?

Answer 6

The plaintiff must have suffered a loss of esteem in the eyes of another, or the false statement about the plaintiff deters third persons from associating or dealing with the caitiff.

Question 7

What is the rule of Libel Per Se?

Answer 7

A civil action for libel will lie when there has been a false and unprivileged publication by letter or otherwise which exposes a person to distrust, hatred, contempt, ridicule, or obloquy… or has a tendency to injury such person in his:

1) Office;
2) Occupation;
3) Business; or
4) Employment.

Question 8

What is the role of the court if the statement has no defamatory meaning?

Answer 8

If the statement has no defamatory meaning whatsoever, the court can dismiss the case for defamation as a matter of law.

Question 9

What is the role of the judge and jury if the statement has only one meaning?

Answer 9

If the statement has only one meaning, the judge will determine if the meaning can be construed as defamatory. The jury must then determine whether the statement, when read or heard by another, would be construed as defamatory.

Question 10

What is the rule of the court and the jury when a statement carries two or more meanings?

Answer 10

When the statement carries the possibility of two or more meanings (one defamatory, the other non-defamatory), the court must pass the statement onto the jury to determine which of the two or more meanings would be attributed to the statement by those to whom it was addressed or may read it.

Question 11

What is the first responsibility of the court when receiving a case of defamation?

Answer 11

It is the role of the court to determine, first, whether the word were reasonably capable of a particular (defamatory) meaning.

Question 12

Grant v. Reader’s Digest

What is the standard for determining whether a statement is defamatory?

Answer 12

The standard for determining whether the meaning of a statement is defamatory is not whether “right-thinking,” “politically correct,” or “law abiding” people, who hear the statement, loses a level of respect or esteem the plaintiff. Rather, as long as someone who hears the statement loses respect or esteem for the individual, then there is injury to the plaintiff, even if they are part of the wrong thinking group.

Question 13

What must be included in a pleading/complaint for defamation?

Answer 13

(1) Elements;
(2) Colloquium;
(3) Inducement;
(4) Innuendo;
(5) Special Damages (when they are required).

Question 14

What is a “colloquium”?

Answer 14

A formal allegation in the complaint that states the words spoken by the defendant were “of and concerning” the plaintiff.

Question 15

What is the defense of truth?

Answer 15

“Truth” is an affirmative defense to a defamation action.
In order to support a defense of truth, the defendant only has to prove that the statements made about the plaintiff are “substantially” true.

Question 16

What are the three situations where a colloquium will arise?

Answer 16

(1) When pronouns are used (he/she burned down…);
(2) When statements are directed at groups of individuals;
(3) When false statements occur in “works of fiction.”

Question 17

What is the general rule regarding how many individuals can be in a claim before it is too large to plead group defamation?

Answer 17

25 people.

Question 18

What is the rule regarding group defamation for large groups?

Answer 18

Where the group or class libeled is large, generally no one will be able to sue because such a general condemnation could not reasonably be regarding each individual of a large group.

Question 19

What is the rule regarding group defamation for small groups?

Answer 19

Where the group or class libeled is small, and each and every member of the group or class is referred to, then any individual member can sue.

Question 20

What is the exception to the rule regarding group defamation for large groups?

Answer 20

Even if the group is large, a member of the group may still have a cause of action for defamation if he/she can demonstrate that some circumstance points to him or her as the person defamed.

Question 21

What does the restatement 2nd of Torts Section 564A state regarding group defamation?

Answer 21

One who publishes defamatory content concerning a group or class of persons is subject to liability to an individual member of it if, but only if:

(1) the group or class is so small that the matter can reasonably be understood to refer to the member, or
(2) the circumstances of publication reasonably give rise to the conclusion that there is a particular reference to that member.

Question 22

Will labeling a work as “fiction” protect a defendant from claims of libel?

Answer 22

No. The fictional setting or label will not shield a defendant from defamation when a reasonable person would understand that the character was a portrayal of the plaintiff.

Question 23

What is the test regarding whether a fictional character is the plaintiff for a defamation action?

Answer 23

For purposes of defamation action, when the plaintiff is not identified by name, the test for determine whether a fictional character in the book is the plaintiff is:

(a) Whether a reader with knowledge of the surrounding circumstances could have reasonably understood that the words referred to the plaintiff;
(b) It is not important that all readers be able to identify the statement as being the plaintiff. All that is necessary is that one person can identify the statement as being about the plaintiff.

Question 24

Can the plaintiff sue the defendant for “ad-libbed” remarks about them over the radio waves?

Answer 24

Yes. The utterance of ad-libbed defamatory remarks made over the radio waves are treated as libel. The speaking of these words is potentially as harmful to a defamed person’s reputation as would publishing the words in a writing.
It is just as reasonably to presume damages from the use of the radio waves as it would be when the defamation is communicated through a writing.

Question 25

What was the court's reasoning in allowing defamation over the radio to be treated the same as defamation done through writing?

Answer 25

The court considered the vast reach of radio and recognized the audience may even be larger than the largest newspaper. Just because something occurs over the radio does not mean it is not as harmful as other written words.

Question 26

What are the damages at common law for libel and slander?

Answer 26

Libel - Damages were presumed | Slander - Pecuniary damages from the disparaging words are required.

Question 27

How has libel and slander been expanded in modern law?

Answer 27

Libel - the term has been broadened to include things communicated by the sense of sight. Slander - the term has been broadened to include things communicated by the sense of hearing.

Question 28

What is the definition of libel from Restatement 2nd of Torts Section 568?

Answer 28

Libel consists of the publication of defamatory matter by written or printed words, or by its embodiment in physical form, or by any other form of communication which has the potentially harmful qualities characteristic of written or printed words.

Question 29

What is the definition of slander from Restatement 2nd of Torts Section 568?

Answer 29

Slander consists of the publication of defamatory matter by spoken words, transitory gestures, or by any form of communication other than those stated in the definition of libel.

Question 30

What is the common law rule for damages for slander?

Answer 30

If the false and disparaging statement made about the plaintiff is slander, then the plaintiff must allege and prove that he or she has suffered an injury due to the disparaging words. Specifically, the plaintiff must prove that they suffered special damages (pecuniary damages) as a result to their reputation. In addition, there must be a nexus between the words and the injury. And the words must be disparaging to the plaintiff's character, such that special damages may be claimed to prove that their character has suffered.

Question 31

What is the rule for slander per se?

Answer 31

At common law, a slander required that the plaintiff demonstrate special damages (pecuniary). Exception: If the statement fell into the 4 exceptions which makes the statement slander per se: (1) Imputation of major crimes; (2) Loathsome disease; (3) Business, trade; Profession or office; (4) Serious sexual misconduct of a female.

Question 32

What is required under the first exception for slander per se - Imputation of major crimes?

Answer 32

Crimes involving moral turpitude. Moral turpitude is a persons conduct that goes against public morals. This conduct is a black mark against the persons character and will have a serious impact.

Question 33

What are crimes of moral turpitude?

Answer 33

Examples are murder, fraud, rape, arson, robbery, and counterfeiting.

Question 34

What is Libel per se?

Answer 34

At common law, all libels were per se. Meaning that they are actionable without having to demonstrate injury to reputation.

Question 35

What is Libel per quod?

Answer 35

The term used when a libel is not defamatory on its face and required the reader to be aware of unstated or extrinsic facts in order to appreciate the defamatory meaning.

Question 36

What is required for "publication"?

Answer 36

A plaintiff suing for defamation must allege in the complaint and prove that the false statement concerning him/her was published. Published is a term of art. In order to be actionable, the defamatory speech must be communicated to someone other than the defendant and the plaintiff. Additionally, the third party must understand the meaning of the language.

Question 37

What is the single publication rule?

Answer 37

The publication of a book, periodical, or newspaper containing defamatory matter gives rise to only one cause of action for libel, which accrues at the time of the original publication.

Question 38

When does the statute of limitations start under the single publication rule?

Answer 38

From the date of the first publication.

Question 39

What is the statute of limitations for libel and slander in Illinois?

Answer 39

One year after the cause of action accrued.

Question 40

Who is a primary publisher?

Answer 40

newspapers and book publishers are primary publishers.

Question 41

What is a primary publisher?

Answer 41

They are held strictly liable for publishing defamatory materials concerning a specific individual.

Question 42

What are the exceptions to strict liability for primary publishers?

Answer 42

The primary publisher's republication of items received from wire services will not be subject to liability if: (1) The service was reputable; (2) The defendant did not know of the falsity; (3) The story itself did not reveal its falsity; and (4) No substantial change was made to the story.

Question 43

What is a secondary publisher?

Answer 43

Are exempted from the strict liability imposed at common law. They are vendors, distributors.

Question 44

What is the general rue of secondary publishers?

Answer 44

There is no liability if the secondary publisher does not know of the falsity of the libelous matter in the publication and has no reason to be placed on guard or notice.

Question 45

What is the communications decency Act?

Answer 45

No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.

Question 46

What are the policies of the Communications Decency Act?

Answer 46

To promote the free exchange of information and ideas over the internet; To encourage voluntary monitoring for offensive or obscene material.

Question 47

When is immunity given under the Communications Decency Act?

Answer 47

Basically, the statute provides immunity from liability for publishing false or defamatory material so long as the information was provided by another.