Defamation

Question 1

A message is defamatory if it:

Answer 1

Subjects plaintiff to scorn and ridicule;

or causes reputational harm

Question 2

Elements

Answer 2

1. a defamatory message
2. certain pleading problems
3. publication of the message
4. the type of defamation
5. damages
6. common law defenses; and
7. constitutional issues

Question 3

Pleading Problems

Answer 3

• to bring an action for defamation, the party suffering must have been a living person OR existing organization

Question 4

Publication

Answer 4

∆’s message must be communicated to a 3rd person, who receives it and understands it

Question 5

When is a message “published?”

Answer 5

• if the defendant negligently permitted it to be communicated to third persons.

OR

• If it is reasonably foreseeable that an eavesdropper might overhear a message, and one does so, there is a sufficient publication.

Question 6

Slander

Answer 6

Defamation in spoken form

Question 7

What is slander per se?

Answer 7

Types of defamation historically regarded as so harmful that it was presumed that the plainitff suffered damage from the very fact of its utterance

Question 8

Four types of slander per se

Answer 8

1. a slander that imputed to the plaintiff the commission of a crime involving moral turpitude or infamous punishment (imprisonment or death);
2. allegations of the plaintiff having a loathsome disease are slander (venereal disease or leprosy);
3. slander which imputes to the plaintiff behavior or characteristics that are incompatible with the proper conduct of his business, profession, or office; and
4. it was slander per se to falsely impute unchastity to a woman.

Question 9

Common Law Defenses to Defamation

Answer 9

1. Truth
2. Absolute Privilege
3. Qualified Privilege

Question 10

Truth

Answer 10

Plaintiff must prove falsity as part of his prima facie case

Question 11

Absolute Privilege

Effects

Answer 11

Where an absolute privilege applies, ∆ is not liable for an otherwise defamatory message as a matter of law

Question 12

Qualified Privilege

Answer 12

If applicable, ∆ is not held liable for otherwise defamatory messages he utters unless he loses the protection of the privilege

Question 13

When does ∆ lose an otherwise available qualified privilege?

Answer 13

1. he acts out of malice;
2. he exceeds the scope of the privilege; or
3. he does not believe the truth of the defamatory communication.

Question 14

Public Official

Answer 14

1. If defamation is related to capacity as public official, they must prove: clear and convincing evidence of actual malice
2. Plaintiff must prove ∆ knew information was false or recklessly disregarded truth or falsity

Question 15

Public Figure

Answer 15

Are treated like public officials

Question 16

Private Figure

Answer 16

1. Look at subject matter – is a public concern or privater matter
   
   1. Look at: form, content, and context
      
      1. he more widley desminiated the infor + media figure = public concern
      2. Less people, private people = private matter