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What kind of speech is required for a defamation action?
false, reputational harm causing
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What is a defamatory message?
one which subjects the P to scorn/ridicule or deters others from dealing with the P causing reputational harm
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Does pure opinion qualify as a defamatory statement?
no
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A defamatory statement is one which can be believed to be what?
truthful and reputation harming
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If D's opinion implies that the D knows certain facts to be true or which implies that such facts exists, is this sufficient to classify the message as defamatory?
maybe - depends on how specific or detailed the statement is
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The statement must be defamatory in the eyes of whom?
a reputable group
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If the P isn't named in the defamatory statement, what must she allege?
that the statement is of or concerning her
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Can a large group be defamed?
no
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In a small group, can every member bring a claim?
yes provided there are no more than 10 to 12 ppl in the group
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Is it possible for a statement to be defamatory w/o being so on its face?
yes
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What does publication mean?
that someone other than the P read, saw or heard the statement AND understood it
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For publication the P must show either that:
- D intentionally or negligently published the statement
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What is the republication rule?
anyone who repeats the defamation becomes a republisher and may therefore be liable for the defamation
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What are the 2 different types of defamation?
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What is libel?
any type of communication that has any sort of permanence - written
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If dealing with libel must damages be proven?
no b/c reputation harm is presumed
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What is slander?
oral or spoken defamation
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For a plaintiff to recover for slander what must the P prove?
special damages - specific economic losses flowing from the defamatory statement
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What categories qualify as slander per se?
- (1) P is unfit to perform in his trade or profession
- (2) crime involving moral turpitude
- (3) current loathsome disease (typically STDs)
- (4) lack of chastity in a woman or general sexual misconduct
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Must the P prove special damages for recovery in slander per se?
no
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What are the 3 common law privileges?
- (1) truth
- (2) absolute privilege
- (3) qualified privilege
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Historically was truth a defense?
yes b/c falsity was presumed
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Today is truth a defense?
no the P must prove falsity as part of his prima facie case
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Who has the BoP to show that an absolute privilege exists?
D
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What is the result if an absolute privilege exists?
the D not liable for defamation no matter how bad it is
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In which contexts does absolute privilege apply?
- (1) communication b/t spouses
- (2) statements made on legislature floor
- (3) statements made b/t high ranking executive officials
- (4) statements made during judicial proceedings
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When does the absolute privilege end?
if someone repeats the defamatory statement in a non-privileged situation
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If claiming a qualified privilege, the BoP is on the D to show what?
that the privilege exists
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If the D is claiming a qualified privilege the BoP is on the P to show what?
that the privilege was lost
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D loses an otherwise available qualified privilege in what situations?
- (1) bad intent
- (2) D knows the statement is false or reckless as to the truth or falsity
- (3) exceeds the scope of the privilege
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Since NY Times v. Sullivan, what 4 questions are considered?
- (1) status of the P
- (2) subject matter of the statement
- (3) damages sought
- (4) status of D
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What is the definition of a public official?
a gov official who has or appears to have substantial responsibility over gov operations
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If the P is a public official what is the standard applied?
actual malice by C&C
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What is actual malice?
D knew or was reckless about the falsity of the statement
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What is the standard applied to public figures?
treated like public officials and therefore P must prove actual malice by C&C
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What are the 2 types of public figures?
- (1) all purpose
- (2) limited
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Who are all purpose public figures?
ppl who are household names
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Who are limited public figures?
ppl who inject themselves into a particular controversy and try to have some effect on its outcome
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When dealing with a private figure what must you look to in determining the standard used?
the subject matter of the defamation - forum, content, and context of the statement
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If dealing with private figure/public concern, what is the standard?
if willing to prove reputational harm (actual damages) the state can impose whatever standard it wants but NOT SL
most use negligence here
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If dealing with private figure/public concern what is the standard for presumed or punitive damages?
actual malice
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If dealing with private figure/private concern, what is the standard for presumed or punitive damages?
P doesn't have to prove actual malice but we don't know what standard is required
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What are the elements of defamation?
- (1) publication
- (2) defamatory statement
- (3) of or concerning the P
- (4) false on facts
- (5) damages
- (6) SL/fault
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