Torts Defamation - MBE

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Torts Defamation - MBE
2012-06-17 20:51:50

torts defamation for MBE
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  1. What kind of speech is required for a defamation action?
    false, reputational harm causing
  2. What is a defamatory message?
    one which subjects the P to scorn/ridicule or deters others from dealing with the P causing reputational harm
  3. Does pure opinion qualify as a defamatory statement?
  4. A defamatory statement is one which can be believed to be what?
    truthful and reputation harming
  5. 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
  6. The statement must be defamatory in the eyes of whom?
    a reputable group
  7. If the P isn't named in the defamatory statement, what must she allege?
    that the statement is of or concerning her
  8. Can a large group be defamed?
  9. In a small group, can every member bring a claim?
    yes provided there are no more than 10 to 12 ppl in the group
  10. Is it possible for a statement to be defamatory w/o being so on its face?
  11. What does publication mean?
    that someone other than the P read, saw or heard the statement AND understood it
  12. For publication the P must show either that:
    • D intentionally or negligently published the statement
  13. What is the republication rule?
    anyone who repeats the defamation becomes a republisher and may therefore be liable for the defamation
  14. What are the 2 different types of defamation?
    • (1) libel
    • (2) slander
  15. What is libel?
    any type of communication that has any sort of permanence - written
  16. If dealing with libel must damages be proven?
    no b/c reputation harm is presumed
  17. What is slander?
    oral or spoken defamation
  18. For a plaintiff to recover for slander what must the P prove?
    special damages - specific economic losses flowing from the defamatory statement
  19. 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   
  20. Must the P prove special damages for recovery in slander per se?
  21. What are the 3 common law privileges?
    • (1) truth
    • (2) absolute privilege
    • (3) qualified privilege  
  22. Historically was truth a defense?
    yes b/c falsity was presumed
  23. Today is truth a defense?
    no the P must prove falsity as part of his prima facie case
  24. Who has the BoP to show that an absolute privilege exists?
  25. What is the result if an absolute privilege exists?
    the D not liable for defamation no matter how bad it is
  26. 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   
  27. When does the absolute privilege end?
    if someone repeats the defamatory statement in a non-privileged situation
  28. If claiming a qualified privilege, the BoP is on the D to show what?
    that the privilege exists
  29. If the D is claiming a qualified privilege the BoP is on the P to show what?
    that the privilege was lost
  30. 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  
  31. 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   
  32. What is the definition of a public official?
    a gov official who has or appears to have substantial responsibility over gov operations
  33. If the P is a public official what is the standard applied?
    actual malice by C&C
  34. What is actual malice?
    D knew or was reckless about the falsity of the statement
  35. What is the standard applied to public figures?
    treated like public officials and therefore P must prove actual malice by C&C
  36. What are the 2 types of public figures?
    • (1) all purpose
    • (2) limited 
  37. Who are all purpose public figures?
    ppl who are household names
  38. Who are limited public figures?
    ppl who inject themselves into a particular controversy and try to have some effect on its outcome
  39. 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
  40. 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 
  41. If dealing with private figure/public concern what is the standard for presumed or punitive damages?
    actual malice
  42. 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
  43. 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