Torts 5

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Torts 5
2010-06-10 23:10:25

Torts 5 - Defamation
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  1. Common Law Defamation : Elements
    • DEFAMATORY statement IDENTIFYING the π
    • PUBLICATION to at least one 3rd-party
    • INJURY to repuation
  2. 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

    Note: π must be specifically identified and alive at time the statement is made
  3. Common Law Defamation : Types of Defamatory Statements?
    • Libelwritten 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
  4. 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
  5. Common Law Defamation : Published Statement?
    ∆ must share statement with at least one 3rd-party

    Note: 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
  6. 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 defamatory
    • Slander 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

  7. Common Law Defamation : ∆'s Defenses
    • 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)

    Who is privileged—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)
  8. Statements of Public Concern : Additional Elements
    • π must prove falsity of the statement, and
    • π must prove fault on the part of ∆
    • Fault

    • π is a Public Figure—Fault = Intent or recklessness
    • π is not a public figure (private)—Fault = Negligence