Defamation

Elements of Defamation

1) False and defamatory statement 2) Concerning the plaintiff 3) Publication to someone other than the plaintiff 4) Harm (sometimes presumed, sometimes actual)

Forms of Defamation

1) fact/opinion -- ordinarily only statements of fact are actionable, but there may be problems distinguishing between facts and opinions. 2) Fabricated quotations -- attributing to one statement that the plaintiff didn't make 3) Sexuality comments -- accusation of adultery 4) Business related defamation

absolute privilege

1) governmental affairs -- the statement must relate to the proceeding. extends to a fair and accurate republications about the proceedings 2) Communications between husband and wife

Who can be defamed?

1) living individuals (the deceased cannot be defamed). 2) entities

What is not actionable in defamation?

1) parity/satire 2) vulgarity 3) libel proof plaintiff situation (Dr. Kevorkian/owner of hustler magazine)

4 categories of slander per se

1) plaintiff has committed a crime 2) plaintiff has a loathsome disease 3) damaging statements to plaintiffs trade, business or occupation 4) Statements reflecting the unchastity of a woman

Privilege

Absolute, qualified

Libel

Defamation that is in written or some other permanent form. May be a radio recording or television in some circumstances. presumed to be defamatory.

False and defamatory statement

If the statement alone is defamatory, it is defamatory on its face. A statement is also actionable if the defamatory meaning becomes apparent only by adding extrinsic facts --inducement: extrinsic facts that make the statement defamatory --innuendo: the meaning assigned to the words

Libel Damages

Majority: General damages presumed. Plaintiff may recover all damages without proving special damages Minority: distinguish between libel per se and libel per quod in determining whether a libel is actionable without proof of special damages

Public Figure plaintiff

Malice required. The NYT malice requirement extends to cover where the plaintiff is a public figure.

Do private persons need to prove malice?

No. Where the defamatory statement relates to a nonpublic person, there is less concern for freedom of speech and press.

libel per se

Presumed damages. Defamatory on its face. this is the written equivalent of slander per se

Defamation

Strict liability tort. Restatement: a statement that lowers one's estimation in the community (appreciable fraction). Common Law: A statement that holds one up to ridicule.

Harm (presumed or actual)

To determine if the harm element is satisfied, must distinguish between libel and slander

When are defamation actions brought by private individuals subject to constitutional limitations?

When the defamatory statements involve a matter of public concern. even in those cases, the limitations are not as great as those established for public officials and public figures

publication to someone other than the plaintiff

a statement is not actionable until there has been a communication to a third person who understood it. the communication may be made intentionally, recklessly, or negligently. It cannot be done innocently.

publication to someone other than the plaintiff (self publication)

an original source of a defamatory statement that is self published by the one who is defamed cannot be held liable for the damages caused by the self publication

Disseminators

are not considered publishers because they are not in control of the materials containing defamatory statements. However, if they know of the defamatory content, they made be held liable anyway.

matters of public concern

at least negligence is required. imposes 2 restrictions on private plaintiffs: 1) prohibits liability without fault (where the defamatory potential was apparent to a reasonable person the plaintiff must show at least negligence) 2) restricts the recovery of presumed or punitive damages (w/o a showing of actual malice, damages can be recovered but are limited to actual injury sustained by the plaintiff. presumed damages are prohibited)

consent

complete defense to a defamation action

Publication to someone other than plaintiff (repetition)

each repetition of the defamatory statement is a separate publication for which the plaintiff may recover. EXCEPTION: single publication rule --a defamatory statement in a number of copies of the same periodical or book is treated as only ONE publication, but damages are calculated on the TOTAL EFFECT of the story on all of the readers

What is malice?

knowledge that the statement was false OR reckless disregard as to its truth or falsity. Reckless is a subjective standard. it must be shown that the DF subjectively ENTERTAINED SUBSTANTIAL DOUBTS as to the truthfulness of his publication

public official plaintiff

malice required. a public official may not recover for defamatory words relating to his official conduct in the absence of proof with CONVINCING CLARITY that the statement was made with malice (NYT v Sullivan)

matters of private concern

no constitutional limitations. Only the 4 elements of defamation are required here, therefore presumed and punitive damages might be recoverable even if malice is not established

actual injury

not limited to out of pocket loss, and may include injury to reputation or esteem in the community, but there must be competent evidence of actual injury. No assignment of a dollar amount is needed.

publication to someone other than the plaintiff (republication)

one who republishes a defamatory statement may be liable and cannot be shielded by identifying the original source of the statement. Who's liable? --original publisher AND republisher ----where there has been a republication, the original defamer's liability will be increased, and he will be held liable for the damages caused by the republication if the harm caused was foreseeable to him

slander

oral defamation. It is distinguished from libel because it is less permanent in a less physical form.

Concerning the plaintiff

plaintiff must establish that a "reasonable" reader, listener, or viewer would understand that the defamatory statement referred to the plaintiff. (colloquium: proof that the statement was about the plaintiff)

slander damages

plaintiff usually must prove special damages: in slander, injury to reputation is not presumed, thus ordinary slander is not actionable in the absence of proof of special damages slander per se damages are presumed: defamatory on its face. within the 4 categories injury is presumed without proof of special damages

libel per quod

proof of special damages usually required. if the statement would have been slander per se had it been spoken instead of written we will treat as if it is slander per se and damages will be presumed.

truth

substantial truth is required. Ask "is what was published really any different than what was actually going on?" Truth is a complete defense.

Defenses to defamation

truth, privilege, consent

qualified privilege

where either the defendant, the 3rd party, or both have some sort of interest of significance that we don't want to inhibit statements between. Job references will be excessive if published beyond the interest that is being fulfilled

public figure definition

where one has such pervasive fame or notoriety that he becomes a public figure (celebrities, sports figures, etc.). Where one voluntarily assumes a central role in a particular public controversy and thereby becomes a public figure for that limited range of issues. (Gertz v Robert Welch)