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Common Law Defamation : Elements
- DEFAMATORY statement IDENTIFYING the π
- PUBLICATION to at least one 3rd-party
- INJURY to repuation
Common Law Defamation : When is a Statement Defamatory?
When the statement tends to adversely
affect π's reputation (esp. commercial reputation)
- Focus: Allegation that affects a putative fact about the π
- Statement of opinion: Would a reasonable listener assume the opinion has a factual basis
: π must be specifically identified
at time the statement is made
Common Law Defamation : Types of Defamatory Statements?
- Libel—written statement, defamatory on its face
- Libel per quod—statement not defamatory on its face (defamatory impact requires extrinsic evidence)
- Slander per se—closed list of oral statements
- Slander not per se
Common Law Defamation : Per se Defamatory?
- Adversely reflects on π's business or profession
- Statement that π has committed a crime of "moral turpitude"
- Statement impugning that a woman is unchaste
- Statement that π suffers from a "loathsome" disease
- NY Distinction: 5th category—insinuation of homosexuality
Common Law Defamation : Published Statement?
∆ must share statement with at least one 3rd-party
: Publication need not be deliberate—
- Effective publication can occur through reckless or negligent conduct
- Test: Likelihood that other people will learn about the defamatory statement
Common Law Defamation : Must π prove Damages?
- Libel—Damages need not be shown (they are presumed), unless
- Libel per quod—Must prove economic damages, unless statement is per se defamatorySlander per se—Damages need not be shown (they are presumed)
- Slander not per se—Must prove economic damages, such as loss of job, business, or commercial contracts
Common Law Defamation : ∆'s Defenses
Who is privileged
- Consent: Express/implied, capacity, scope)
- Truth: Factually accurate
- Privileged communications: Who (absolute) and when (qualified—strong social interest in encouraging candor: (i) confidential communication to another (ii) concerning a 3rd-party (iii) in which both have a legitimate interest)
—spouses, government officers engaged in conduct of their official duties
When is the statement protected
—Strong social interest in encouraging candor
, and ∆ reasonably believes that the statement is accurate
(e.g., letters of recommendation)
Statements of Public Concern : Additional Elements
- π must prove falsity of the statement, and
- π must prove fault on the part of ∆
- π is a Public Figure—Fault = Intent or recklessness
- π is not a public figure (private)—Fault = Negligence