TORTS - Defamation

DEFAMATORY/FALSE STATEMENT

A defamatory false statement tends to impugn the reputations of the plaintiff, and it constitutes more than mere opinion.

DEFENSES Qualified Privilege

A defendant is protected for statements made within the scope of their privilege under a qualified privilege. Such protected statements must be made with the good faith of a reasonable perosn in similar circumstances. However, there is no privilege for a statement made outside of the scope of defendants privilege, which would be considered an abuse of the qualified privilege.

DEFENSES Subjective Opinion

A defendant may have a defense where they prove that their statement about the plaintiff was not an objective statement of fact, but just a subjective opinion. However, where facts justify the opinion, an opinion defense may be invalid.

REMEDIES

A plaintiff in a defamation claim may recover general damages, monetary damages, damages related to humiliation, damages related to loss of friendship, and damages related to loss of associations in the community. A plaintiff may also recover punitive damages, where the defendant's actions to defame the plaintiff were outside the bounds of civilized society.

DEFENSES Retraction

A retraction of a defamatory statement is a defense, where the defendant publishes a retraction within a certain time period.

DEFENSES Absolute Privilege

An absolute privilege will exist where the defendant is free to make statements with impunity. Absolute immunity applies to judicial proceedings, government officials and legislators acting within their duties, and communications between husband and wife.

DEFENSES Consent

Consent to a defamation claim occurs where the plaintiff agrees to a public representation of themselves.

DEFAMATION

Defamation concerns a false statement by defendant, communicated to at least one other person, that causes harm to the plaintiff.

LIBEL

Libel is written defamation, and it tends to be more serious than slander, due to the fact that libel is permanently fixed in a reproducible medium.

HARM TO PLAINTIFF

Plaintiff must show monetary or emotional harm, in order to prevail in a defamation claim.

Gertz v. Welch/ Private Persons Engaged in Public Controversy

Private persons suing in regards to a public controversy, may recover without a showing of actual malice, all remedies, except presumed or punitive damages.

SLANDER

Slander is oral defamation

PUBLICATION/COMMUNICATION

The defamatory/false statement must be published, or communicated, to a person who understands the communication. Publication may occur through intentionally wanting the communication to occur, or through unintentional/negligent means. Each additional publication by each potential defendant is actionable.

DEFENSES Truth

Truth is a full defense to a defamation claim, whether or not the defamatory statement was intentional.

Actual Malice for Public Officials

Under NY Times v. Sullivan, a plaintiff who is a public official, must show that the defendant communicated the false information either intentionally, or with a reckless disregard of truth or falsity.

Slander per se

Under slander per se, a plaintiff need not show damages or harm, because the slander is inherently damaging. Slander per se applies to statements about plaintiff related to felonious criminal behavior, immoral acts, loathsome diseases, sexual misconduct or an inability to engage properly in professional duties.

CONCERNING PLAINTIFF

Where a defendant cites more than one person, colloquium requires additional facts to establish that the defendant meant to defame a particular plaintiff.