Chapter 11: Defamation

What is the difference between libel and slander?

Libel refers to written defamatory statements; slander refers to oral statements.

Define unreasonable intrusion.

A defendant who intentionally intrudes upon the seclusion of another is liable for invasion of privacy if his or her intrusion would be considered "highly offensive to a reasonable person."

What damages can a plaintiff recover in a defamation case?

A plaintiff who successfully proves defamation can recover for pecuniary as well as nonpecuniary losses, such as lost friendship, illness, and humiliation. As a constitutional matter, punitive damages may not be awarded to private figures in suits involving matters of public interest unless the plaintiff is able to prove that the defendant acted with actual malice (Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749 [1985]).

What is the definition of actual malice, and when must it be proved?

Actual malice means having the knowledge that a statement is false, or acting with "reckless disregard" for the truth or falsity of the statement. It must be proved if the plaintiff is a public official or public figure.

What is the difference between an absolute and qualified privilege?

An absolute privilege applies regardless of the defendant's motives. A qualified privilege applies only when the defendant acts on the basis of certain well-defined purposes.

What four torts constitute invasion of privacy?

Appropriation, unreasonable intrusion, public disclosure of private acts, and false light.

What is the difference between trade libel and slander of title?

If the plaintiff's goods or business are falsely disparaged, the tort committed is typically referred to as trade libel, but if the disparagement refers to property rights of the plaintiff, the tort is usually referred to as slander of title.

Define appropriation.

If the value of a plaintiff's name or picture is used by a defendant for a defendant's own financial gain, the plaintiff can sue for appropriation. For example, the unauthorized use of an actress's photograph for the purposes of advertising could give rise to a cause of action for appropriation.

What is injurious falsehood?

Injurious falsehood protects plaintiffs against false statements made against their business, product, or property rights.

What is a "publication"? What is required for a publication to occur?

It is a term of art requiring that the statement be seen or heard by someone other than the plaintiff. A publication may be intentional or negligent. Merely overhearing a statement made by the defendant to the plaintiff does not constitute publication. The publication must also be understood by the person who hears it.

Who enjoys an absolute privilege?

Judges, lawyers, parties, and witnesses enjoy an absolute privilege for the statements they make during judicial proceedings, regardless of the motives for their statements. Such statements must, however, bear some relation to the matter at issue. Similarly, legislators acting in furtherance of their legislative function during a legislative hearing enjoy an absolute privilege. Witnesses testifying before the legislature are also absolutely privileged. All federal officials, governors, and high-ranking state officials have absolute immunity while acting in their official capacities. The states are in disagreement, however, as to whether absolute immunity extends to lower-ranking officials, such as police officers. Note that no privilege applies to statements issued outside the course and furtherance of the defendant's job.

Can the survivors of a deceased person sue for defamation based on statements made about the deceased?

No, only living persons can be defamed. Therefore, survivors of the deceased cannot sue for defamation because of statements made against the deceased.

In what four cases does special harm not have to be proved (slander)?

The four categories encompass statements alleging: (1) that the plaintiff engaged in criminal behavior; (2) that the plaintiff suffers from some type of venereal or otherwise loathsome and communicable disease; (3) that the plaintiff is unfit to conduct his or her business, trade, or profession; (4) that the plaintiff has engaged in sexual misconduct.

Must a plaintiff's reputation actually be injured for the plaintiff to recover for defamation? Must the plaintiff's reputation be tarnished in the eyes of the majority of the community?

To be considered defamatory, a statement must have a tendency to harm the reputation of the plaintiff (Restatement [Second] of Torts § 559). The plaintiff's reputation need not actually be injured. A statement is sufficiently harmful if the plaintiff's reputation would have been injured if those who heard the statement had believed it. Therefore, even if everyone who hears a defamatory statement believes it to be false, this statement can still be considered defamatory.

How does trade libel differ from defamation?

Trade libel differs from defamation in that the false statement need not ridicule or disgrace the plaintiff. As with defamation, however, the plaintiff must show the statement was published and that the plaintiff suffered some kind of pecuniary harm. The defendant must also either know his or her statement is false, act with reckless disregard for the truth or falsity of the statement, or (according to some courts) act out of spite toward the plaintiff.

Who has the burden of proving the truth or falsity of the defendant's statement?

Under the common law the defendant had the burden of proving the truth of his or her statement. Supreme Court decisions, however, have limited a state's ability to require the defendant to bear such a burden. Today the plaintiff bears the burden of proving that a statement was false if the statement involves a matter of "public interest" and the defendant is a media defendant (Philadelphia Newspapers v. Hepps, 106 U.S. 1558 [1986]).

Define false light.

A plaintiff put before the public eye in a false light that would be highly offensive to a reasonable person can also sue for invasion of privacy (Restatement [Second] of Torts § 652E). "False light'' actions can be brought only if the plaintiff can show that the defendant deliberately portrayed the plaintiff in a false light or acted in reckless disregard of the issue (Time, Inc. v. Hill, 385 U.S. 374 [1967]).

What must a plaintiff prove to recover for defamation?

Defamation requires proof that the defendant's statement was defamatory and that it was "published," i.e., communicated to someone other than the plaintiff. Furthermore, the defendant must, at the very least, act negligently (although a greater degree of fault is required under certain circumstances).

What are presumed damages, and what is their relationship to special harm?

Presumed damages are those damages that ordinarily flow from defamation, thereby precluding the necessity of the plaintiff proving actual harm. Special harm has to be proved, presumed damages do not.

Define public disclosure of private facts.

Publicizing the details of the plaintiff's private life may also constitute an invasion of privacy. The matter publicized must be of the type that would be "highly offensive to a reasonable person" and must "not be of legitimate concern to the public'' (Restatement [Second] of Torts § 652D).

Under what circumstances is a defendant protected by a qualified privilege?

Reports pertaining to public proceedings, such as court cases and legislative hearings, enjoy a qualified privilege of immunity.