TORTS: Defamation Flashcards
Defamation
Defamation requires proof of (1) a defamatory statement by the defendant (2) of or concerning the plaintiff, (3) publication to a third person, (4) damage to the plaintiff’s reputation, (5) falsity of the statement, and (6) fault on the defendant’s party. Damages depend on whether the defamation is liable, slander, or slander per se.
Defamatory Statement
A defamatory statement is a false statement that lowers the plaintiff’s reputation within the community. Pure opinions or true statements are not defamatory.
Of or concerning the plaintiff
Of or concerning the plaintiff means that the plaintiff must be identifiable to a reasonable person.
Publication
Publication means that the statement must have been published to a third party who understood the statement.
Damage to Reputation
The statement need not have actually harmed the plaintiff’s reputation but the plaintiff must show that it would have had an effect if it had been believed.
Damages for Libel
Libel is written or printed publication of a defamatory statement and includes phonograph records, radio, or TV broadcasts. The plaintiff does not need to prove special damages for libel and general damages are presumed.
Damages for Slander
Slander is spoken or verbal defamation. For normal slander the plaintiff must prove special damages, which means the plaintiff has suffered some pecuniary loss as a result of the slander. For slander per se, damages are presumed. The following are slander per se: language that adversely reflects on the plaintiff’s fitness to conduct his business or profession, alleges the plaintiff has a loathsome disease, imputes morally culpable criminal behavior to the plaintiff, or imputes serious sexual misconduct to the plaintiff.
Fault
If the plaintiff is a public figure, then the actual malice standard is applied to establish fault. Actual malice exists when the defendant made the statement with either knowledge that it was false or reckless disregard as to whether it was true or false. Damages are presumed if actual malice is shown. If the plaintiff is a private person but the statement involves a matter of public concern, then the plaintiff only needs to prove negligence regarding the falsity of the statement. Only actual injury damages are recoverable. However, if malice exists, damages are presumed and punitive damages are allowed. If the plaintiff is a private person and the statement involves a private matter, then the publication must be made negligently. Repeaters of the defamatory statement can also be liable as long as there was an intent to publish the statement.
Defenses to Defamation
Consent
Truth
Absolute Privilege
Qualified Privilege
Consent
Consent is a complete defense to defamation, but plaintiff must have the legal capacity to consent.
Truth
Truth is a complete defense to defamation, but the burden is on the defendant to prove the truth of the statement.
Absolute Privilege
A defendant may be protected by an absolute privilege for the following: remarks made during judicial proceedings, by legislators and debate, by Federal executive officials, in compelled broadcasts, and between spouses. The privilege exists even if the defendant acted with malice.
Qualified Privilege
Qualified privilege extends to statements made to protect the publisher’s interests if the defamation relates directly to those interests, or for the protection of the recipient or a third party, or to act in the public interest or to report on public proceedings. This privilege can be lost if the defendant acted with malice or if the statement is not within the scope of the privilege.
Falsity
Public officials and public figures must prove falsity. Private figures must prove falsity if statement pertains to matters of public concern. If private figure and private speech, then defendant must prove truth.
