Defamation

Question 1

What is the key to a defamation action?

Answer 1

• That there is false reputational harm causing speech
• all about reputational harm
• tessted along w/invasion of privacy

Question 2

What are the steps to analyze a defamation action?

Answer 2

1. Is the communication defamatory?
2. Are there pleading problems?
3. Is there publication?
4. Is it liable or slander?
5. Are there common law privileges?
6. Constitutional 1st Amendment Issues

Question 3

What is a defamatory communication?

Answer 3

• A communication has to subject a person to scorn, ridicule, oblique or deter others from dealing with the person causing reputational harm
• Comunication must be understood as
  
  • truthful (something one can believe is true)
  • reputation harming
  • Note - pure opinion not defamatory but becareful
• Reputation has to be harmed in the eyes of a reputable group

Question 4

What are pleading problems?

Answer 4

• if P is not named, P has to show that the communication was of & concerning her
• Large groups cannot be defamed
  
  • small groups
    
    • every member can bring a claim
• sometimes the defamation is not clear on its face

Question 5

How is the element of publication satisfied & P recover?*****************

Answer 5

• Publication means that someone other than P
  
  • read,
  • saw,
  • heard the defamation
• P has to show that the
  
  • Δ intentional published the information or
  • Δ was negligent in publishing the information
• Republication rule - anyone who republishes also can become liable

Question 6

What are the types of defamation?

Answer 6

1. Libel
2. Slander

Question 7

What is libel defamation?

Answer 7

• Any sort of communication that has a certain permance
  
  • i.e. - writing, picture, sculpture
• Reputation harm pressumed

Question 8

What is slander?

Answer 8

• oral/spoken defamation
• For P to recover,
  
  • P must prove special damages
    
    • specific economic losses that flow from the defamation
• Exceptions - Slander per se************* (P does not have to prove special damages)
  
  • Slander that states that P is unfit to perform in his trade or profession
  • Falsely claiming that P was involved in a crime of moral turpitude (serious crime)
  • Falsely stating that someone has a current loathsome disease
    
    • i.e. - sexually transmissible, HIV
  • Lack of chastuty in a woman & (some jur. add general sexual misconduct)

Question 9

What are common law privileges?*****

Answer 9

• Truth
  
  • Initially falselity was pressumed & truth was a defense
  • Today - P has to prove falsity as part of primia facie case
• Absolute Privilege*****
  
  • if it applies, the Δ is not liablefor defamation no matter how bad Δ is
    
    • i.e. - communication bet. spouse, statements made bet high ranking execfutive officials, statements made on the floor of legislative, statements made in judicial proceedings
  • the privilege is limited to a particular context/situation
• Qualified Privilege
  
  • can be lost by bad intnetn or where Δ knowns the information is false or is reckless
  • provide information of relative information to a 3rd person

Question 10

What are the constitutional issues for defamation?

Answer 10

• Prior to 1964, P did not have to prove falsity
• After 1964 ask:
  
  • What is the status of the P?
    
    • i.e. - public official, public figure, private P
  • What is the subject matter?
    
    • matter of public or private concern
  • What damages does P seek
  • What is the status of the Δ

Question 11

How are public officials treated in defamation?

Answer 11

• If the communication relates to the public official in the capacity of the public official
• Has to prove
  
  • clear & convincing evidence of actual malice
  • Δ knew info was false or recklessly disregarded truth or falsity (entertained serious doubt)

Question 12

How are public figures treated in defamation?

Answer 12

• treated just like public officials
• have to prove clear & convincing evidence of actual malice
• Two types
  
  • all purpose public figures
    
    • considered household names
  • limiting public figures
    
    • people who inject themselves into a controversey

Question 13

How are private individuals treated in defamation?

Answer 13

• Need to look at the subject matter of the defamation
  
  • Is it of public or private concern
    
    • Look at: form, content, context
• If private P & public concern
  
  • state set any standard they want so long as not strict liability, generally they use negligence provided P is willing to prove reputational harm
  • for pressumed & punitive damages, P has to prove clear & convincing evidence of actual malice
• Private P & private concern
  
  • P does not have to prove actual malice