Defamation

Question 1

Elements of Defamation

Answer 1

1. Defamatory language
2. “Of or concerning” the P
3. Publication by D or 3rd person
4. Damage to P’s reputation

If matter of public concern:

5. Falsity of the defamatory language
6. Fault on part of D

Question 2

Defamatory Language

Answer 2

Tends to adversely affect person’s reputation; opinion actionable if based on specific facts and the express allegation of those facts would be defamatory

Question 3

Inducement and Innuendo

Answer 3

Inducement (additional facts pled) showing defamatory meaning through innuendo

Question 4

Living Requirement

Answer 4

Any living person, or a business entity, can be defamed

Question 5

“Of and Concerning” P

Answer 5

Reasonable person would understand that the defamatory statement referred to P

“Colloquium” can be pled to show statement refers to P

Question 6

Group Defamation

Answer 6

Defaming a large group = no individual member can show ‘of and concerning’

Defaming some members of small group = P can recover if reasonable person would view statement as referring to P

Defaming all members of small group, each can show ‘of and concerning’

Question 7

Publication

Answer 7

Publication = communication of the defamation to someone other than the P

Requires intent to publish, not defame

Each repetition is a separate publication, except with single publication rule - all copies = one publication

Primary publishers are as liable as the defamer, secondary publisher (selling, playing tapes) only liable if they know or should know of the defamatory content

Question 8

Damage to P’s Reputation

Answer 8

Libel - printed or written; P does not need to prove special damages, general damages are presumed

Slander - spoken; P must prove special damages, unless slander per se

1. Adversely reflect on conduct in business or profession
2. Loathsome disease
3. Guilty of crime of moral turpitude
4. Woman is unchaste

Question 9

First Amendment Issues

Answer 9

Constitutional elements when defamation involves matter of public concern

1. Falsity of statement
2. Fault on part of D

Question 10

Fault on D’s Part

Answer 10

Depends on P’s status
1. Public official, public figure (achieving pervasive fame or notoriety, voluntarily assuming central role in public controversy) must show malice

2. Private persons = must only show negligence (for matters of public concern) and actual injury (no presumed damages)

Question 11

Malice

Answer 11

Knowledge that statement was false, or reckless disregard as to whether it was false

Subjective test

Question 12

Public official/figure

Answer 12

1. Must show actual malice

2. Presumed damages

Question 13

Private person/matter of public concern

Answer 13

1. Must show at least negligence as to statement’s truth or falsity
2. Damages only for proven “actual injury” (presumed damages if P can show actual malice)

Question 14

Private person/matter of private concern

Answer 14

1. No fault as to truth or falsity must be proven

2. Presumed damages

Question 15

Defenses to Defamation

Answer 15

Consent, truth, absolute privilege (spousal, government), qualified privilege (statements made in good faith and relevant to matters at hand)