Defamation and related torts Flashcards
(38 cards)
Defamation - elements
The defamatory statement that specifically identifies the plaintiff
Published to a third-party
Falsity of the defamatory language
Fault on the part of the defendant
Damage to the plaintiff reputation
Defamation - defamatory statement - generally
Defamatory statement is one tending to adversely affect one’s reputation. A statement of opinion is actionable only if it appears to be based on a specific facts, and an express allegation of those facts would be defamatory. Name-calling is insufficient. 
Defamation - defamatory statement - inducement and innuendo
If the statement is not defamatory on its face, the plaintiff may plead additional facts as inducement to establish defamatory meaning by innuendo
Defamation - defamatory statement - living person requirement
Any living person may be defamed. Defamation of a deceased person is not actionable. In a limited sense, the corporation, unincorporated association, or partnership may be defamed. For example, by remarks as to its financial condition, honesty or integrity.
Defamation - publication - generally
Publication means communication of the defamation to a third person who understands it. Such publication can be made either intentionally or negligently. It is the intent to publish, not the intent to defend, that is the requisite intent. Each repetition is a separate publication. However, for magazines or newspapers, most states have adopted a single publication rule under which all copies are treated as one publication.
A statement made about the plaintiff only to the plaintiff is not defamation because there is no publication.
Defamation - statement must specifically identify plaintiff - colloquium
if the statement does not refer to the plaintiff on its face, extrinsic evidence may be offered to establish that the statement refers to the plaintiff
Defamation - statement must specifically identify plaintiff - generally
The plaintive must establish that a reasonable reader, listener, or viewer would understand that an amatory statement referred to the plaintiff
Defamation - publication - who may be liable
Primary publishers are liable to the same extent as the author or speaker. One who repeats a defamation is liable on the same general basis as the primary publisher, even if she states the source or makes it clear that she does not believe the defamation. Selling papers or playing audio files is the secondary publisher and is liable only if he knows or should have known of the defamatory content. An Internet service provider is not treated as a publisher when a user of a service post defamatory content. 
Defamation - statement must specifically identify plaintiff - group defamation
If that defamatory statement refers to all members of a small group, each member may establish that the statement specifically identifies them by alleging that they are a group member. Meeting every member of that small group wins.
If the statement only refers to some members of a small group, the plaintive can recover if a reasonable person would view the statement as referring to the plaintiff
If the statement is about a large group, no member can prove that the statement specifically identifies them. The defendant wins.
Defamation - fault on defendant’s part - public official or figure must prove actual malice - what constitutes a public figure?
Under the New York Times versus Sullivan rule, actual malice must be proved in a defamation case brought by a public official and public figures.
A person becomes a public figure by achieving pervasive fame or notoriety or by voluntarily, assuming a central role in a particular public controversy.
If it is someone who only has a central role in a particular public controversy, they are a limited public figure. And you only need to prove for the thing that they are in the public eye for.
Defamation - fault on defendant’s part - private persons must prove negligence if matter of public concern
When a private person is the plaintiff, only negligence regarding the falsity must be proved if the statement involves a matter of public concern.
If the statement is not a matter of public concern, constitutional restrictions, do not apply. However, note that many states require a showing of negligence as a matter of state law. If the defendant is negligent, only actual injury damages, a recoverable. However, if actual malice is found, damages may be presumed and punitive damages are allowed.
Defamation - falsity
Under a traditional common law, a plaintive did not have to prove that the statement was false. Rather the defendant was obliged to prove truth as a defense.
Most states have altered that rule, however, and now require a plaintiff to prove falsity as part of the case and chief. Even in states that still follow the traditional rule, the plaintiff must prove falsity in any case for the plaintiff is constitutionally obligated to proof fault.
Defamation - fault on defendant’s part - generally
I’m majority of states require a showing a fault on the part of the defendant. In addition, there are constitutional limitations, depending on the plaintiff status.
Defamation - fault on defendant’s part - private persons must prove negligence if matter of public concern - what is a matter of public concern
Did determine whether the defamatory statement involves a matter of public concern or private concern, the courts will look at the content, form, and context of the publication.
Defamation - fault on defendant’s part - public official or figure must prove actual malice - definition of actual malice
Actual malice is: knowledge that the statement was false or reckless disregard as to whether it was false.
This is a subjective test. The defendants spite or ill well is not enough to constitute malice. Deliberately altering a quotation may constitute malice if the alteration causes a material change in the meaning conveyed by the quotation.
Defamation - fault on defendant’s part - private persons must prove negligence if matter of public concern - what constitutes actual injury
Actual injury is not limited to economic damages. It may include damages for impairment to reputation and personal humiliation as long as the plaintiff presents evidence of such damages. In other words, there is no presumed damages.
Defamation - defenses - consent
Consent is a complete defense. The rules relating to consent to intentional towards apply here.
Defamation - defenses - privilege - absolute privilege
The defendant may be protected by an absolute privilege for the following
Communications between spouses
Remarks made during judicial proceedings, by legislators during proceedings, even if not related to the proceedings, by federal executive officials, and compelled broadcast.
Defamation - damage to plaintiff’s reputation - slander
Slander is spoken defamation. The plaintiff must prove special damages, unless the defamation falls within one of the slender per categories, which are defamatory statements that:
Adversely reflect on the plaintiff, business or profession
State that the plaintiff has committed a serious crime. This includes most common law crimes and is sometimes referred to his crimes involving moral turpitude
Impute that the plaintiff has engaged in serious sexual misconduct
State that the plaintiff has a loathsome disease which is almost always a venereal disease
Defamation - mitigating factors
Mitigating factors for example no malice, retraction, anger of the speaker provoked by the plaintiff, maybe considered by the jury on the damages issue. But they are not defenses to liability.
Invasion of right to privacy - generally
The right to privacy is a personal right and does not extend to members of a family, does not survive the death of the plaintiff, and is not a suitable. The right of privacy is not applicable to corporations. The invasion of the plaintiff interest in privacy must have been proximately caused by the defendants conduct. The plaintiff need not plead and prove special damages. Emotional distress and mental anguish are sufficient damages.
Defamation - defenses - truth
In cases where the plaintiff is not obligated to prove falsity of the statement as part of their own case, the defendant may prove truth as a complete defense.
Defamation - damage to plaintiff’s reputation - generally
The type of damages the plaintiff must prove depends on the type of defamation involved. Damages, generally or presumed under the law of liable. And some slander cases, the plaintiff must prove that they suffered special damages: that is, they must’ve suffered some pecuniary loss in order to recover anything. But once the plaintiff has proof, special damages, they may recover general damages as well.
Defamation - damage to plaintiff’s reputation - libel
Libel is defamation that is embodied in permanent form. It is often written or printed publication of defamatory language. Defamation and radio television pro programs is treated by most courts today as libel. Plaintive typically does not need to prove special damages to recover in general damages are presumed.
Minority of courts will presume general damages if the statement is defamatory on its face and require proof of special damages, if the statement requires reference to extreme facts to establish its defamatory.
