Torts 5

• DEFAMATORY statement IDENTIFYING the π
• PUBLICATION to at least one 3rd-party
• INJURY to repuation

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

• 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

• 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

∆ 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

• 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

• 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)

• 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