Com Law Exam 2

Front 1

Defamation Case Steps

Back 1

1. Publication
2. Identification
3. Defamatory Statement
4. Falsity
5. Fault
6. Damages

Front 2

Publication

Back 2

• Need 3 people
o Speaker
o Receiver
o The subject of
• Republication is publication
• Publisher/distributer distinction: the distributer isn’t held liable
• Who published it? Who is the defendant?

Front 3

Identification

Back 3

 Identification of plaintiff
• “of and concerning”- plaintiff must be identified
• ‘fictional’ characters: even if characters are fictional if they are based on real people and are able to be identified they can sue for libel (ie seventeen May story)
• Group Libel
o Neiman Marcus vs. Lait
o Depends on language (most, some) and the amount of people in the group
o Most groups that win are 25 people or less
o A jury decides once it is over 100 people

Front 4

Defamatory Statement

Back 4

• A statement of fact that
o Lowers reputation in the community, and/or
o Causes loss of association
• Types of libel:
o Libel per se- anyone reading/hearing them will decrease someone’s rep. (ex. Any criminal accusation or anything about sexual promiscuity)
o Libel per quod: libel because of other facts
o Libel by implication: the way that you say something (ie sarcasm)

Front 5

Falsity

Back 5

• Burden falls on plaintiff to prove that it is false
o Prior to NY Times v. Sullivan the burden fell on the defendant to prove the statement true
• Substantial truth
• Falsity by omission
• Falsity by implication

Front 6

Fault

Back 6

-Actual Malice - public figure
-Negligence - private figure

Front 7

Public Figure Test

Back 7

• Did the individual voluntarily inject him/herself into a public issue in an effort to affect its outcomes?
• Was the individual heavily involved in an area of high community concern?
• Has the individual achieved a broad community reputation involving the activity upon which the libel suit is based?

Front 8

Types of Public figures

Back 8

• All purpose: all the time
• Limited purpose: sometimes
• Involuntary: you are dragged into something (ie 9/11 families, or US Airways plane crash)

Front 9

Actual Malice

Back 9

• Knowingly publishing falsehoods, or
• Publishing information with a reckless disregard for the truth
• Indicators
o Did altering the quote materially change the meaning?
o Was the publication urgent, was there time to check the information?
o How reliable was the source of information?
o Was the information probable?
o Has there been an extreme departure from professional standards

Front 10

Negligence

Back 10

• Failure to act as a reasonable person under the circumstances
• Relies on an ‘average person’ approach OR average professional standard
• A single lapse in journalistic practice can constitute negligence