Defamation Flashcards
What are 2 differences between Criminal and Civil Law?
1) Criminal: state prosecutes defendant. Civil: Plaintiff prosecutes defendant
2) Criminal: fine to state, Civil: monetary damages to plaintiff
What is the difference between statutory and common law?
Statutory: law passed by legislature
Common: published opinions for special cases, based on precedent cases
What are the 3 burdens of proof the Plaintiff have to file a defamation case?
DIP
Defamatory String
Identification of Plaintiff
Publication
Define Defamatory Sting.
The whole topic & cause of action that lowers another’s reputation, or make others avoid him, exposing them to hatred, contempt, ridicule, causing loss of good will and confidence.
What’s the objective test of sting? (3 qualities)
1) feels defamatory to the ordinary, reasonable, right thinking person - no need majority & doesn’t depend on P’s interpretation
2) D’s intend to defame not required.
3) Defamatory sting may be indirect: courts read between the lines
How to prove identification for a Defamation case? (2 qualities)
1) whether defamatory material might be understood by reasonable people to refer to (majority unnecessary)
2) does not have to be named - as long as some people in the audience can identify
How to prove Publication for a Defamation case? (2 qualities)
1) communication to at least one other person (3rd person) besides the subject
2) can be spoken/through any medium
What are 2 differences between Libel & Slander?
1) Libel is recorded while Slander is spoken.
2) Libel: no need to prove damage to P’s reputation, but Slander: P must prove monetary damage (special damage rule)
What are 4 exceptions to the special damage rule?
1) Criminality
2) Loathsome, contagious disease
3) Unfit for business, profession, trade, office
4) Female in unchaste
What are the 4 options a defendant can take in a defamation suit?
1) Defences
2) Settlement (agree to call off allegation)
3) Apology (to mitigate damages)
4) Grant a reply (D publish P’s reply - part of settlement sometimes)
What are the 4 defences a defendant can take in a defamation suit?
1) Justification/Truth
2) Fair comment
3) Privilege
4) Unintentional Defamation
What is the truth/justification defence, and what 3 qualities does it have?
Defendant must prove that the statement is true in court, based on evidence like records & memories of credible witnesses
1) defence stands even if D has malice
2) Applies even if minor details are inaccurate
3) Content must still be true, so words like “rumour is”, “Allegedly” still makes it liable for defamation.
How to qualify for the fair comment defence? (4)
1) Must be an opinion: not a factual statement that can be proved true/false
2) Must be fair: D must have some factual basis to hold the opinion, though opinion can be prejudiced, exaggerated or unreasonable.
3) If evidence that D is motivated by malice towards P, then it is not fair
4) Must be a matter of some legitimate public interest
What is the privilege defence and what 4 circumstances can it be used in?
Defence against defamation actions in certain situations, where there is a strong need for candour (frankness).
Parliament, Judicial Proceedings, Media, other circumstances
How are proceedings in the parliament privileged from defamation claims? (2)
1) Participants are immune to defamation claims even if they communicate with malice
2) reports on parliament are privileged, but they lose privilege if malicious
How are judicial proceedings privileged from defamation claims?
1) no defamation liability for participants even if they communicate with malice
2) reports are privileged only if they are fair & accurate. Malice can negate privilege in some cases (reporting only on one side)
How is the media privileged from defamation claims?
1) Licensed newspapers & broadcasters have privilege for some official matters, but they must be fair and accurate without malice
2) Niche media is more likely to get the privilege (in arguing that duty/interest test is met)
What are 4 criteria to fulfil as “other circumstances” that are privileged from defamation claims? (4)
1) When D has a duty (legal, moral, social, business) to communicate the content
2) Intended recipient has an interest (stake) in receiving it
3) D lacks malice
4) D believes content is true
Must fulfil all criteria
Does D’s intent matter in a defamationsuit?
P need not prove D’s intent to defame/identify P, but proof of D’s intent may increase damages award.
How to qualify for the Statutory Defence for Unintentional Defamation? (2)
If the publisher (D):
1) Took reasonable care (use reasonable standard to evaluate) AND
2) Published “innocently”: D didn’t know/intend for words to refer to P, OR words are not defamatory on the surface & D didn’t know they would be understood as defamatory of P
What are the 3 procedural requirements for Unintentional Defamation?
1) D makes corrections & unreserved apology AND
2) Take reasonable steps to reach recipients of libel
3) P decides to whether to accept offer to close case. If no, the defence would only work partially, where D still has to pay damages but lesser
Who can sue for defamation? (3)
1) Living individuals,
2) Corporations & Societies
3) Individual public/civil servants
4) individual members of groups (if more than 12 members, less likely to win)
Who cannot sue for defamation? (3)
1) survivors of dead individuals (though dead can be criminally defamed)
2) groups as a whole
3) governments (SG not enough cases, UK and US cannot)
Which parties involved in offline defamatory material can be liable for defamation?
Before 1900: anyone disseminating material can be liable, including printer, distributor, bookseller, librarian etc
After 1900: Author, editor, publishing house only
