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DEFAMATION: ELEMENTS (average joe)
1. defamatory language;
2. must be "of or concerning" plaintiff -- must identify plaintiff to a reasonable reader, listener, or viewer;
3. publication to a third person; and
4. damage to the reputation of plaintiff.
DEFAMATION OF PUBLIC FIGURE: ELEMENTS
1. defamatory language;
2. must be "of or concernting" plaintiff -- must identify plaintiff to a reasonable reader, listener, or viewer;
3. publication to a third person;
4. damage to the reputation of plaintiff
5. falsity of the defamatory language; and
6. fault on defendant's part.
DEFAMATORY LANGUAGE: DEFINED
Language that tends to adversely affect one's reputation.
Not all defamation consists of direct remarks, may also be pictures, satire, drama, etc.
A statement of fact may always be defamatory, but a statement of opinion is actionable only if it appears to be based on specific facts, and an express allegation of those facts would be defamatory.
INDUCEMENT AND INNUENDO
Inducement and innuendo may be used by the plaintiff to prove the "defamatory language" element with extrinsic facts.
Who may be defamed?
Any living person; or a corporation, unincorporated association, or partnership.
"OF OR CONCERNING" PLAINTIFF
Plaintiff must establish that a reasonable reader would understand that the defamatory statement referred to the plaintiff.
Pleading and proving extrinsic facts to show that the plaintiff was, in fact, the subject of the statement is called "colloquium".
Where the language referes to all members of a small group, each member may establish that the language was "of or conderning" him by alleging that he is a member of the group.
If the statement refers to all members of a large group, no member can prove this element.
Where the statements concern some members of a small group, plaintiff can recover if a reasonable person would view the statement as referring to the plaintiff.
The publication element is satisfied when there has been a communication to a third person who understoon it.
Defendant must have the intent to publish, but need not intend to defame.
Each repetition of the statement is a separate publication for which the plaintiff may recover damages.
SINGLE PUBLICATION RULE
All copies of the same newspaper, magazine, or book are treated as a single publication.
The publication is deemed to occur when the finished product is released by the publisher for sale.
Damages are calculated for the total effect of the story on all readers.
Who may be liable?
Primary Publisher -- a newspaper, or tv station carrying a defamatory message would be viewed as a primary publisher and held responsible for the message to the same extent as the author or speaker.
Republisher -- will be held liable on the same general basis as primary (the original defamer's liability may be increased to encompass any new harm caused by the repetition if the repub was either -- intended by the original defamer or -- reasonably foreseeable.
Secondary Publishers -- those who are responsible for disseminating publications -- only liable if they know or should have known of the defamatory content.
Libel is a defamatory statement recorded in writing or some other permanent form.
LIBEL: DAMAGES RULES
In most jurisdictions, general damages are presumed by law for all libels.
In a minority of courts there is a distinction:
-- libel per se -- injury to reputation presumed by law only if the statement is libelous and defamatory on its face
-- libel per quod -- if reference to extrinsic facts are required to show defamatory content, these courts generally require special damages to be plead and proved
Spoken defamation -- less permanent and less physical in form.
Radio or tv broadcasts normally considered to be libel.
If the original defamation is libel, all repetitions are libel even if oral, but written repetition of slander will be considered libel.
DAMAGES when the defamation is SLANDER
Injury to reputation generally not presumed for slander
, must plead and prove special damages.
- Damages are presumed for slander per se, where the defamation involves:
- -- business
- -- loathsome disease
- -- crime of moral turpitude
- -- unchaste
No presumption of falsity in cases in which the plaintiff is constitutionally required to prove some type of fault as prima facie case -- must prove falsity.
These are cases involving public figures or matters of public concern.
IF THE STATEMENT IS TRUE -- can plaintiff prove intentional infliction of emotional distress or invasion of right to privacy? (If plaintiff is a public figure who would be barred on first amendment grounds from recovering for defamation, he cannot rely on these other theories.)
PROVING FAULT: who needs to?
PUBLIC OFFICIALS -- must prove by clear and convincing evidence that the statement was made with malice.
PUBLIC FIGURES -- malice required
PRIVATE PERSONS -- no malice
person may be deemed public figure on one of two grounds:
-- where he has achieved such pervasive fame and notoriety that he becomes a public figure for all purposes and contexts; or
-- where he voluntarily assumes a central role in a particular public controversy and threby becomes a public figure for that limited range of issues.
Defined: knowledge that the statement was false, OR reckless disregard as to its truth or falsity.
Reckless conduct is not measured by a reasonable person standard. There must be a showing that defendant in fact subjectively entertained serious doubts as to the truthfulness of his publication.
Not enough to show that defendant acted with spite, hatred, ill will, or intent to injure plaintiff.
Alteration of Quote as Malice
A journalist deliberately altering a quote attributed to a public figure can be found to have knowledge of falsity if it can be established that the alteration results in a material change in the meaning conveyed by the statement.
Private persons need not prove malice unless it is a matter of public concern.
- When the statement concerns a matter of public concern:
- -- liablity is prohibited without proof of fault; and
- -- recovery of presumed and punitive damages is limited.
If the statement's defamatory potential is apparent to a reasonably prudent person
, the plaintiff must show that the defendant permitted the false statement to appear, if not through malice, at least through negligence as to its falsity
MATTERS OF PURELY PRIVATE CONCERN
Only the four elements of defamation are required. Thus, presumed and punitive damages might be recoverable even if malice is not established.
Four elements: defamatory language; of or concerning plaintiff; publication to third person; and damage to reputation of plaintiff.
DEFENSES TO DEFAMATION: CONSENT
Consent is a complete defense.
DEFENSES TO DEFAMATION: TRUTH
In cases of purely private concern where plaintiff is not required to prove falsity, defendant may establish the truth of the statement as a complete defense.
DEFENSES TO DEFAMATION:
Absolute privileges exist in the following cases:
-- all statements made by judge, jurors, counsel, witnesses, or parties in judicial proceedings as long as statement bears some reasonable relationship to proceedings
-- all remarks made by federal or state legislators in their official capacity during legislative proceedings
-- governmental executive with respect to any sttement made by her while exercinsing the functions of her office
-- a compelled broadcast
-- communications from one spouse to another
DEFENSES TO DEFAMATION:
-- reports of public hearings or meetings -- excuses accurate reports of statements that were false when made, but it does not excuse inaccuracies in reporting the statements
-- statements made to those who are to take official action of some sort
-- fair comment and criticism where the matter is of general public interest
-- where defendant's statement is made to defend her own actions, property, or reputation
-- where the recipient has an interest in the information and it is reasonable for the defendant to make the publication
-- where there is common interest between publisher and recipient
LOSS OF QUALIFIED PRIVILEGE THROUGH ABUSE
Two ways to lose privilege:
-- the allegedly protected statement falls outside the scope of the privilege or the publication is to a person who is not reasonably within the scope
-- it is shown that the speaker acted with malice, meaning that the statement was made with knowledge that it was untrue or in recless disregard to its truth or falsity
QUALIFIED PRIVILEGES: BURDENS OF PROOF
The defendant bears the burden of proving that a privilege exists.
If the privilege is qualified, the plaintiff bears the burden of proving that the privilege has been lost through excessive publication or malice.
DEFAMATION: MITIGATING FACTORS
-- no actual malice -- may mitigate damages
-- retraction -- may show lack of actual malice
-- anger, if provoked by plaintiff