Torts Defamation - MBE
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. What would you like to do?
What kind of speech is required for a defamation action?
false, reputational harm causing
What is a defamatory message?
one which subjects the P to scorn/ridicule or deters others from dealing with the P causing reputational harm
Does pure opinion qualify as a defamatory statement?
A defamatory statement is one which can be believed to be what?
truthful and reputation harming
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
The statement must be defamatory in the eyes of whom?
a reputable group
If the P isn't named in the defamatory statement, what must she allege?
that the statement is of or concerning her
Can a large group be defamed?
In a small group, can every member bring a claim?
yes provided there are no more than 10 to 12 ppl in the group
Is it possible for a statement to be defamatory w/o being so on its face?
What does publication mean?
that someone other than the P read, saw or heard the statement AND understood it
For publication the P must show either that:
- D intentionally or negligently published the statement
What is the republication rule?
anyone who repeats the defamation becomes a republisher and may therefore be liable for the defamation
What are the 2 different types of defamation?
What is libel?
any type of communication that has any sort of permanence - written
If dealing with libel must damages be proven?
no b/c reputation harm is presumed
What is slander?
oral or spoken defamation
For a plaintiff to recover for slander what must the P prove?
special damages - specific economic losses flowing from the defamatory statement
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
Must the P prove special damages for recovery in slander per se?
What are the 3 common law privileges?
- (1) truth
- (2) absolute privilege
- (3) qualified privilege
Historically was truth a defense?
yes b/c falsity was presumed
Today is truth a defense?
no the P must prove falsity as part of his prima facie case
Who has the BoP to show that an absolute privilege exists?
What is the result if an absolute privilege exists?
the D not liable for defamation no matter how bad it is
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
When does the absolute privilege end?
if someone repeats the defamatory statement in a non-privileged situation
If claiming a qualified privilege, the BoP is on the D to show what?
that the privilege exists
If the D is claiming a qualified privilege the BoP is on the P to show what?
that the privilege was lost
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
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
What is the definition of a public official?
a gov official who has or appears to have substantial responsibility over gov operations
If the P is a public official what is the standard applied?
actual malice by C&C
What is actual malice?
D knew or was reckless about the falsity of the statement
What is the standard applied to public figures?
treated like public officials and therefore P must prove actual malice by C&C
What are the 2 types of public figures?
- (1) all purpose
- (2) limited
Who are all purpose public figures?
ppl who are household names
Who are limited public figures?
ppl who inject themselves into a particular controversy and try to have some effect on its outcome
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
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
If dealing with private figure/public concern what is the standard for presumed or punitive damages?
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
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
What would you like to do?
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