"Tort Law for Paralegals" (Full Chptr. 11 Review) Defamation

What are "Defenses to Defamation"? (chptr.11,pg.382)

*The statement is not defamatory* - the most obvious defense *The Defamed Person is Deceased* - unable to be defamed *Privileges* - clergy, congress, state legislatures, while legislation is in session *Absolute Privileges* - client/attorney *Qualified Privileges* - attorney final statement *The Statement is True* - a complete defense for the defendant even if the statement is made with malice, ill will, or hatred *Good Faith Statutes* - to insulate the press from defamation lawsuits for reporting on various issues of public concern. If a reporter can show that she acted in good faith, a defamation action will not be permitted. If the press does print something incorrectly, in some jurisdictions are required to print a retraction.

What are the (5) "Elements of Defamation"? -Most jurisdictions follow the requirement that proof of the plaintiff's allegations must be *clear and convincing*.- (chptr.11,pg.371-374)

1. Defamatory Language 2. False Statements 3. Statement Refers to the Plaintiff . Publication 5. Injury to the Plaintiff's Reputation

What are the steps to analyze a defamation case for constitutional implications? (chptr.11,pg.382)

1. Has the plaintiff proved defamation according to state law? 2. Is the plaintiff entitled to recover under state law? 3. If the answer to both questions is yes, does the First Amendment protect the defendant's otherwise defamatory statement?

Examples of statements where malice would be inferred include: (chptr.11,pg.384)

1. Implicating the defendant in a crime 2. Making statements designed to show that the defendant is not legally entitled to practice her profession Accusing the plaintiff of having a communicable sexual disease

What is "The New York Times Rule"? (chptr.11,pg.383)

A court case that brought about dramatic changes in how defamation actions are brought and also affected the standard of proof in such cases. When a plaintiff is a public person and the statement involves a matter of public concern, the standard of proof that the plaintiff must meet to prove a defamation case is much higher than when the case involves a private individual and a statement that does not involve a matter of public debate.

*[SIDE]* What is the definition of "Defamation"? (chptr.11,pg.370)

A false attack on the reputation or character of another

*[SIDE]* What is meant by "Clear and Convincing"? (chptr.11,pg.371)

A measure of proof that is higher than preponderance of the evidence, but less than beyond a reasonable doubt; clear and convincing proof is evidence that is likely to be true under the facts

What is meant by "Injury to the Plaintiff's Reputation"? (chptr.11,pg.374)

A plaintiff has been subjected to public ridicule, hatred, or contempt. A statement that hurts the reputation or causes the plaintiff, embarrassment, or humiliated.

What is the definition of "Defamatory Language"? What type of statements are not considered defamatory? (chptr.11,pg.371)

Any statement that subjects the plaintiff to public ridicule, hatred, or contempt. The statement must injure the plaintiff's reputation or cause the plaintiff, embarrassment, or humiliated. Not generally considered defamation: Insults generally are not Statements that injures a plaintiff's feelings

What is meant by a shifting standard depending on the plaintiff's notoriety? (chptr.11,pg.385)

Celebrities, politicians, and other famous people have placed themselves in the public eye and enjoy less protection than private individuals. Public figures must show actual malice before they will be allowed to recover against the person make the defamatory statement.

What is meant by *"Writing"* in the case of defamatory language? (chptr.11,pg.376)

Courts have interpreted writing to include: drawings pictures printed material photographs newspaper columns books and magazines and other It is considered to be a more permanent medium of expression than oral statements.

Constitutional Limits on Defamation actions (chptr.11,pg.382)

Defamation actions give plaintiffs the right to sue people who make statements about them. The First Amendment to the United States Constitution guarantees freedom of speech. Courts have to balance the protections of the First Amendment against an individual's right to protect her reputation.

What is the "Bruden of Proof" for defamatory language claim? (chptr.11,pg.372)

It sounds rather obvious but they must prove that the statement was made about him. If the person is speaking or pointing at a group it is hard to prove that the person was targeting them in particular. If a statement can reasonably be interpreted as referring to the plaintiff, the courts will rule that the defendant has defamed the plaintiff even though the defendant never referred to the plaintiff by name.

What affect might defamation have on a plaintiff? (chptr.11,pg.370)

It tends to harm the person's reputation in the community or Cause others to stop associating with him. Falsely injures another's reputation Exposes a person to public humiliation or degradation

Is Libel more serious than Slander? (chptr.11,pg.378)

Libel is considered to be more injurious to the plaintiff because the written word is more permanent. Writings can last for centuries and permanently ruin the plaintiff's reputation and good name in a way that slander is incapable of doing.

What is meant by "Libel Per Se" in the case of defamatory language? (chptr.11,pg.376)

Libel per se is any writing (including a drawing) about a specific category of defamatory statements that is considered to be so serous that an injury to the plaintiff's reputation may be presumed.

What is meant by "Simple Liable"? (chptr.11,pg.374)

Many jurisdictions use this phrase to distinguish less complicated forms of liable from more complex forms.

Is it possible to defame a group? (chptr.11,pg.373)

No, not if the group is very big Yes, if the group is a family or a clearly ascertainable plaintiff, that is, one of the members of that particular family

*[SIDE]* What is the definition of "Malice"? (chptr.11,pg.384)

Reckless or false statements. Legal malice is a court-created doctrine that supplies the element by assuming that certain phrases could only have been motivated by ill will. Examples would include falsely accusing someone of a crime or other despicable act. Refers to the defendant's hatred, ill will, or bad feelings toward the plaintiff/ Malice has a fluid definition, which depends on the nature of the communication.

What is meant by "publicaton"? (chptr.11,pg.373)

Refers to expressing a statement in writing or speaking it aloud. In all jurisdictions, publication or communication of the defamatory statement is an essential requirement. Courts use the terms communication and publication interchangeably.

What is defamation in Cyberspace? (chptr.11,pg.386)

Some states have taken the initiative in addressing these issues. Some have expanded the definition of defamation and their criminal statues on stalking to include harassment over the internet.

*[SIDE] What is the definition of "Slander"? (chptr.11,pg.371)

Spoken defamation

Under the common law, these (3) things are no defense to defamation: (chptr.11,pg.370)

That the statement was made innocently That the plaintiff was a public figure That the statement was made on a matter of public concern by a media affiliate

Damages in Defamation Cases (chptr.11,pg.382)

The harm may be limited to the damages for emotional distress, but the plaintiff is still permitted to cover. The jury is allowed to consider several different factors: The nature of the statement how many people heard it or read it What was the character of the plaintiff prior to the incident How has it character been affected since To what extent has the plaintiff suffered mental anguish, humiliation, or embarrassment because of the defamatory statement

What is the definition of "Slander"? What is not considered slander? (chptr.11,pg.377)

When a person is defamed verbally, this is slander. Generally a slanderous statement must be stated loud enough for someone other than the plaintiff to hear it. A defamatory statement made in some other way than writing. The statement must be one that calls the plaintiff's character or reputation into question. Insults and cutting remarks are not slander.

What is meant by "Libel Per Quod"? (chptr.11,pg.376)

When a statement must be interpreted before it is considered defamatory, most jurisdictions refer to it by this term. A statement may seem innocuous standing by itself, but may become clearly defamatory when other facts are considered.

What is meant by "Slander Per Se"? (chptr.11,pg.378)

When the defendant accuses the plaintiff of committing a crime involving theft or dishonesty, or of having a communicable sexual diseasd, slander per se id triggered and the plaintiff is entitled to special damages. Special damages are those damages that are beyond mere humiliation or embarrassment - malice and injury to reputation are presumed.

*[SIDE]* What is the definition of "Libel"? (chptr.11,pg.371)

Written defamation

When the statement is slander the plaintiff must prove special damages. What does that mean? (chptr.11,pg.382)

the financial and other losses suffered by the plaintiff that are directly tied to the defendant's actions.