VII. A. Defamation

c. Private individual

1) Matter of public concern 2) Not a matter of public concern

c. Opinion

A defamatory opinion cannot be the basis for a defamation action unless the opinion implies knowledge of facts. Example: If the defendant said, "In my opinion, John Jones is a thief," the statement would be regarded as defamatory because it implies the fact that John Jones stole something. On the other hand, the statement, "In my opinion, John Jones is a lousy artist," cannot be the basis for a defamation action because people can disagree regarding the quality of an artist's paintings.

c. Internet service providers

A federal statute provides that Internet service providers are not publishers for the purpose of defamation law.

b. Republication

A person who repeats a defamatory statement may be liable for defamation even though that person identifies the originator of the statement and expresses a lack of knowledge as to the truthfulness of the statement.

A. Defamation

A plaintiff may bring an action for defamation if the defendant's defamatory language is of or concerning the plaintiff, is published to a third party who understands its defamatory nature, and it damages the plaintiff's reputation. 1. Defamatory Language 2. "Of or Concerning" the Plaintiff 3. Publication 4. Constitutional Requirements 5. Falsity 6. Fault 7. Libel and Slander Distinguished 8. Constitutional Limitations on Damages 9. Defenses

"Public figure" & standard

A public figure is someone who is known to the general public and includes any person who has voluntarily injected himself into the public eye. E.g., a corporation If the statement relates to a public figure, π must prove actual malice on ∆s part, as well as the falsity of the language

a. Public official

A public official is someone in the hierarchy of government employees who has, or appears to have, substantial responsibility for or control over the conduct of government affairs. Candidates for public office are also treated as public officials.

1) Abuse of privilege

A qualified privilege may be lost if it is abused. Generally, a privilege is abused by making statements outside the scope of the privilege or by acting with malice. Traditionally, the malice required was express malice—hatred, ill will, or spite. Today, most jurisdictions hold that actual malice, i.e., knowledge that a statement is false or acting with a reckless disregard as to the truth or falsity of the statement, will defeat a qualified privilege.

2. "Of or Concerning" the Plaintiff

A reasonable person must believe that the defamatory communication refers to this particular plaintiff and holds him up to scorn or ridicule in the eyes of a substantial number of respectable members of the community. If the defamatory language applies to a group, then a member of the group can maintain a defamation action only if the group is so small that the matter can reasonably be understood to refer to that member, unless there is other evidence that the language refers to that particular member. A deceased individual cannot be defamed. A corporation, partnership, or unincorporated association may be defamed if the language prejudices it in conducting its activities or deters others from dealing with it.

b. Private individual plaintiff/not a matter of public concern

At common law and in some states today, a private individual plaintiff suing for defamation regarding a statement that does not involve a matter of public concern is not required to prove falsity as part of her prima facie case. However, the defendant may prove the truth of the statement as an affirmative defense.

b. Consent

Consent by the plaintiff is a defense, but as with other torts, a defendant cannot exceed the scope of the plaintiff's consent.

4) Constitutional constraints

Damages recoverable in a slander action, as well as damages recoverable in a libel action, are subject to the constitutional limitations discussed below.

b. Slander

Defamation by spoken word, gesture, or any form other than libel is slander. To recover for slander, the plaintiff must plead and prove one of the following. 1) Special damages 2) Slander per se 3) Parasitic damages 4) Constitutional constraints

a. Libel

Defamation by words written, printed, or otherwise recorded in permanent form is libel. 1) Television and radio 2) E-mail and other electronic communication 3) General and presumed damages 4) Libel per quod

Matters of public concern

For matters of public concern, the plaintiff must prove fault on the part of the defendant as well as falsity of the statement.

a. Matters of public concern

If either (i) the defamatory statement relates to a matter of public concern or (ii)the plaintiff is a public official or a public figure, then the plaintiff must prove that the defamatory statement is false as part of her prima facie case.

c. Private individual/not a matter of public concern

If the plaintiff in a defamation action is a private individual and the defendant's statement does not involve a matter of public concern, then the constitutional requirements do not apply. At common law, the defendant was strictly liable. Most states today require at least negligence by the defendant for all defamation actions, and some now require actual malice in all defamation actions.

b. Private individual/matter of public concern

If the plaintiff in a defamation action is a private individual and the defendant's statement involves a matter of public concern, then the plaintiff is constitutionally required to prove that the defendant acted with fault—either negligence or actual malice.

a. Public official or public figure

If the plaintiff in a defamation action is either a public official or a public figure, then the plaintiff is required to prove that the defendant acted with actual malice; that is, he either had knowledge that the statement was false or acted with reckless disregard as to the truth or falsity of the statement. To establish a reckless disregard for the truthfulness of a statement, the plaintiff must prove that the defendant entertained serious doubts about its truthfulness; mere failure to check facts is not sufficient.

1) Matter of public concern

If the plaintiff is a private individual (neither a public figure nor a public official) and the statement involves a matter of public concern, then the defendant is entitled to limited constitutional protections, though not as significant as those available when the person being defamed is either a public official or a public figure.

c. Private individual/not a matter of public concern

If the plaintiff is a private individual and the defamatory statement does not involve a matter of public concern, then the plaintiff may recover general, including presumed, damages without proving actual malice.

b. Private individual/matter of public concern

If the plaintiff is a private individual and the defamatory statement relates to a matter of public concern, then the plaintiff is entitled to recover only actual damages. However, if the plaintiff proves actual malice, instead of mere fault, then there is no constitutional limitation on her recovery of either punitive or presumed damages.

2) Not a matter of public concern

If the plaintiff is a private individual and the statement is not a matter of public concern, then there are no constitutional restrictions on the law of defamation. However, many states now apply the same principles of defamation law to all cases involving private individuals as plaintiffs.

a. Public-official or public-figure plaintiffs

If the plaintiff is either a public official or a public figure, then the plaintiff can only recover actual damages. Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974). Actual damages must be proved; they do not include presumed damages. However, actual damages are a broader category than special damages. Actual damages are not limited to out-of-pocket expenses but include compensation for impairment of the plaintiff's reputation and standing in the community, personal humiliation, and mental anguish and suffering.

4) Libel per quod

In some jurisdictions, under the doctrine of libel per quod, if the nature of the defamatory statement requires proof of extrinsic facts to show that the statement is defamatory, then the plaintiff must prove either special damages or that the statement fits into one of the four categories of statements that satisfy the requirements of slander per se.

1. Defamatory Language

Language that diminishes respect, esteem, or goodwill toward the plaintiff, or that deters others from associating with the plaintiff, is defamatory. The plaintiff may introduce extrinsic facts to establish defamation by innuendo. An opinion is actionable if the defendant implies that there is a factual basis for that opinion.

3) General and presumed damages

Libel plaintiff need only prove general damages in order to complete the prima facie tort of libel. General damages are any damages that compensate the plaintiff for harm to her reputation. CL, the plaintiff was entitled to recover "presumed damages" as part of general damages. The plaintiff did not need to prove that she actually incurred any damages; her lawyer only needed to invite the jury to award the damages that it believed flowed from the defendant's defamatory communication.

2) E-mail and other electronic communication

Most courts addressing the issue have held that e-mail messages can be categorized as libel. It is not yet clear whether courts will hold that tweets and text messages are libel or slander.

3) Parasitic damages

Once the plaintiff satisfies the requirements of the slander per se prima facie tort by proving either special damages or slander per se, at common law, she could recover general damages as parasitic damages.

a. To a third party

Publication of defamatory matter is its intentional or negligent communication to a third party, i.e., to someone other than the person being defamed. Example: If an employer confronts her employee in a face-to-face conversation during which no one else is present and no one can overhear the conversation and tells him that he is being fired because he embezzled company funds, then there is no publication and no defamation. EXAM NOTE: MBE questions on defamation often center on the publication requirement. Remember that the statement must be intentionally or negligently made to a third party. Beware of fact patterns in which the publication requirement is not met, such as those involving a third party learning about the statement through no fault of the defendant's, or when no third party hears the statement at all.

1) Special damages

Special damages require the plaintiff to prove that a third party heard the defendant's defamatory comments and acted adversely to her. Most often, special damages involve an economic loss to the plaintiff, e.g., loss of employment or loss of business, but they also would include such things as the plaintiff's fiancé breaking off the engagement or a friend refusing to host the plaintiff in her home after hearing the defamatory comments.

c. Absolute privileges

Statements made under the following circumstances are shielded by absolute privilege: i) In the course of judicial proceedings; ii) In the course of legislative proceedings; iii) Between husband and wife; and iv) Required publications by radio, television, or newspaper (e.g., statements by a political candidate that a station must carry and may not censor). Statements made in the course of judicial proceedings must be related to the proceedings in order to be privileged; however, no such requirement exists for legislative proceedings.

d. Qualified (conditional) privilege

Statements made under the following circumstances are subject to a conditional privilege: i) In the interest of the publisher (defendant), such as defending his reputation; ii) In the interest of the recipient of the statement or a third party; or iii) Affecting an important public interest. Qualified privileges most often occur in the contexts of employment references, credit reports, and charges and accusations within professional societies and among members of religious and charitable organizations. 1) Abuse of privilege 2) Burden of proof

2) Burden of proof

The burden is on the defendant to prove that the privilege exists. It is, therefore, an affirmative defense. The burden is then on the plaintiff to prove that the privilege has been abused and therefore lost.

Determining the Standard for establishing ∆s fault

The standard for establishing the ∆s fault depends on πs status as a public or private figure. If the plaintiff is either a public official or a public figure, then the plaintiff must prove actual malice.

1) Television and radio

Today, it is generally—though not universally—accepted that defamatory radio and television broadcasts are libel, regardless of whether they are spoken from a script.

a. Truth

Truth is an absolute defense to a claim of defamation. Falsity as an element of a cause of action: For a defamation action brought by a public official or figure, by a limited public figure, or by a private figure regarding a statement about a matter of public concern, the falsity of the statement is an element that the plaintiff must prove. Common-law distinction: The plaintiff need not prove fault or falsity for common-law defamation. Defamatory statements are presumed to be false, and the defendant must assert truth as a defense. A truthful statement is not defamatory. A statement that contains slight inaccuracies may nevertheless be considered to be true and therefore not defamatory. A statement that a person has engaged in conduct that is substantially different from the conduct in which the person did in fact engage is not considered to be true, even if the person's actual conduct was equally or more morally reprehensible. EXAM NOTE: If a statement is true but seems like defamation, consider whether it constitutes intentional infliction of emotional distress or invasion of privacy.

2) Slander per se

Under the doctrine of slander per se, a plaintiff alleging slander need not plead and prove special damages if the statement defaming her fits into one of four categories. To qualify as slander per se, the defamatory statement must accuse the plaintiff of one of the following. i) Committing a crime. In many jurisdictions, the crime must be one involving moral turpitude or one that subjects the criminal to imprisonment. ii) Conduct reflecting poorly on the plaintiff's trade or profession. Traditionally, accusing a navigator, teacher, or holy person of being a drunk satisfied this requirement, but the same accusation against a salesperson did not. iii) Having a loathsome disease. Traditionally, loathsome diseases included illnesses such as leprosy or a sexually transmitted disease. iv) Sexual misconduct. In modern times, examples of cases falling within this subcategory, as well as the previous one, are very rare. A few courts have held that trading sex for drugs constitutes sexual misconduct.

7. Libel and Slander Distinguished

a. Libel b. Slander

5. Falsity

a. Matters of public concern b. Private individual plaintiff/not a matter of public concern c. Opinion

4. Constitutional Requirements

a. Public official b. Public figure c. Private individual

6. Fault

a. Public official or public figure b. Private individual/matter of public concern c. Private individual/not a matter of public concern

8. Constitutional Limitations on Damages

a. Public-official or public-figure plaintiffs b. Private individual/matter of public concern c. Private individual/not a matter of public concern

3. Publication

a. To a third party b. Republication

9. Defenses

a. Truth b. Consent c. Absolute privileges d. Qualified (conditional) privilege

b. Public figure

i) General purpose public figures—plaintiffs who occupy positions of such persuasive power and influence in society that they are deemed public figures for all purposes; and ii) Limited purpose or special purpose public figures—plaintiffs who thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved. These plaintiffs are treated as public figures if the defamatory statement relates to their participation in the controversy, but they are treated as private figures if the defamation relates to any other matter.

"Malice"

∆ knew that the statement or language was false, or he recklessly disregarded its truthfulness.

"Reckless disregard for the truth"

∆ mut have entertained serious doubts about its truthfulness; mere failure to check facts is not sufficient.