Defamation

Front 1

What is the barf for defamation

Back 1

defamation is a false statement of fact that attaches to the plaintiff that is intentionally or negligently published and that is damaging. Plaintiff will have to show some sort of state of mind for the defendant with regard to the truth or falsity of the statement

Front 2

what are the two constitutional requirements in regards to defamation?

Back 2

fault and falsity

Front 3

what are the three manners a plaintiff can use to prove that the statement attached to him

Back 3

1. Colloquium
2. inducements
3. innuendo

Front 4

what is publication in regards to defamation?

Back 4

Plaintiff must prove that the way in which somebody actually physically saw or heard the words was as a result of intentional or negligent conduct on the part of the defendant (fault #!-physical publication)

Front 5

what is the single publication rule?

Back 5

most courts have found that each edition of a book or magazine is a publication rather than each copy being a publication

Front 6

when a defendant makes a defamatory statement, can be be liable not only for the immediate publication, but any foreseeable re-publication?

Back 6

yes

Front 7

May secondary publishers be held liable for defamation?

Back 7

a vendor or a distributor of a newspaper, magazine, or book is not liable if he had no knowledge of libelous matter in the publication and had no reason to be put on guard.

Front 8

In regards to publications from wire services, can they be held to strict liability?

Back 8

not if:
1. the service was reputable
2. defendant did not know of the falsity
3. the story itself does not revel its falsity
4. No substantial change was made to the story

Front 9

what are the two forms of action for defamation?

Back 9

libel and slander

Front 10

what is libel?

Back 10

originally concerned with written or printed words, now libel is anything permanent.

Front 11

what is slander?

Back 11

Originally oral, now includes anything transitory

Front 12

In libel, is the plaintiff entitled to presumed damages?

Back 12

yes

Front 13

is a plaintiff awarded automatic presumed damages in regards to slander?

Back 13

no, plaintiff must show actual financial loss to recovery (pecuniary)

Front 14

what are the four categories of slander per se?

Back 14

1. imputation of a major crime
2. loathsome disease
3. accuse one of misconduct in their business, trade profession or office
4. serious sexual misconduct

Front 15

what is the barf for libel?

Back 15

a civil action for libel will lie when there has been a false and unprivileged publication by letter or otherwise which exposes a person to distrust, hatred, contempt, ridicule or discust or which has a tendy to injry the person in which office, occupation, business or employment.

Front 16

what are the factors to be considered in regards to an action being libel or slander?

Back 16

the area of dissemination, the deliberate and premeditated character of its publication, and the persistence of the defamation are factors to be considered.

Front 17

at common law, has there been a general agreement that an action of defamation will lie only if the statement is both defamatory and false?

Back 17

yes

Front 18

in a commonlaw defamation action, is truth an affirmative defense?

Back 18

yes, the defendant must raise it and have the burden of proof

Front 19

when a plaintiff can get presumed damages on a showing of common law malice, can he also get punitive damages?

Back 19

yes

Front 20

How must special damages be proved?

Back 20

plaintiff must prove special damages and that those damages must have been the natural, immediate, and legal consequence of the works. Usually loss of marriage or of customers or the pervention of receiving some other benefit that the plaintiff normally would receive is sufficient damage.

Front 21

For a plaintiff to get punitive damages, what must he prove first?

Back 21

he must prove that he can get presumed damages (on a common law showing of malice)

Front 22

If the statement is a simple slander statement, must plaintiff show actual fiancial loss before he recovers anything?

Back 22

yes

Front 23

If a statement is libel, does the plaintiff have to show actual financial loss?

Back 23

no, he already has presumed damages, (go straight to the pot of gold)

Front 24

does the majority of a community have to think less of a person to find that the statement made about him was defamatory?

Back 24

no

Front 25

may a plaintiff sue for IIED when the underlying act is barred from suit for unconstitutional reasons?

Back 25

no, see hustler v fallwell

Front 26

If a group that is defamed is large, may they sue?

Back 26

no none of the individuals can sue even though the language used is inclusive

Front 27

If the group that is defamed is small and each and every member is referred to, may suit be brought?

Back 27

yes, even if the group is very small, as members of the community, they are going to all stand out and the sting on them will be very severe. Therefore the court says that they can sue

Front 28

what is an all purpose public figure?

Back 28

one who has either pervasive fame or you have to inject yourself into a public controversey to try to influence the outcome. Public for all purposes at all times. (clinton, madonna, etc)

Front 29

What is a limited purpose public figure?

Back 29

treated like a public figure. Someone who has thrust themselves into an existing controversey to try to influcence public opinion.

Front 30

can one be made a limited purpose public figure?

Back 30

no

Front 31

In regards to a limited purpose public figure, must the statement that is made be relevant to that persons role in the controversey?

Back 31

yes

Front 32

In regards to a Limited Purpose Public Figure, if the state that is made is not relevant to the controversy, what happens?

Back 32

then the defamed is a private person

Front 33

Is it possible to become a limited purpose public figure involuntarily if you are somehow drawn into a controversey?

Back 33

yes, but the courts are more and more drawing back from who could be a public figure

Front 34

what is common law malice?

Back 34

the willful desire to injure (totally different creature from malice)

Front 35

what is NY times Malice?

Back 35

(actual malice) knowledge of falsity or acted with reckless disregard for the truth

Front 36

When proving NY Times Malice, do you have to show all other elements of defamation?

Back 36

yes

Front 37

what is Reckless Disregard?

Back 37

the defendant had to have published entertaining serious doubts as to its truth

Front 38

What is negligence in regards to defamation?

Back 38

was the foreseeable probabiity and gravity of injury from him making this statement greater than his burden to check out the truth or falsity of the statement?

Front 39

what are presumed damages?

Back 39

money and emotional distress losses but dosent require any proof, whatever damges the jury thinks plaintiff must have suffered.

Front 40

what are actual damages?

Back 40

quantifiable money and emotional loss

Front 41

what is Pecuniary Loss?

Back 41

quantifiable money loss

Front 42

what is the constitutional overlay on top of commonlaw defamation?

Back 42

the constitutional cases have added to the common law causes of action for defamation. Plaintiff has to prove some sort of state of mind of fault on the defendants part with regard to the truth or falsity of the statement. Depending on who the plaintiff is and the character of the statement.

Front 43

what is the burden of proof for a public figure plaintiff vs any defendant?

Back 43

Ny times malice for both medica defendants and private defendants

Front 44

if a public official can prove new york times malice, can he get presumed damages?

Back 44

yes

Front 45

if the issue is of a public concern or a public figure and a media defendant, does the plaintiff have the burden of proving the statement was false?>

Back 45

yes

Front 46

What level of proof must a public plaintiff prove new york malice

Back 46

by clear and convincing evidence

Front 47

if a misquotation materially changes the statement, does that show knowledge of falsity and satisfy ny times ?

Back 47

yes

Front 48

In regards to defamation of a public figure, is reckless conduct measured by the reasonable person standard?

Back 48

no, because as mere negligence is never sufficient to show "actual malice"

Front 49

What are the five elements the court applied in regards to determining the status as a voluntary public figure?

Back 49

1. the plaintiff has access to channels of effective communications
2. the plaintiff voluntarily assumd a role of special prominence in the public controversey
3. the plaintiff sought to influence the resolution or outcome of the controversey
4. the controversey existed prior to the publication of the defamatory statement
5. the plaintiff retained public figure status at the time of the alleged information

Front 50

what is the standard for private plaintiff vs any defendant on a public concern?

Back 50

If they can prove negligence, they can get actual damages

if they can prove ny times malic, they can get presumed damages

Front 51

when you have a private figure and the statement is abot a purely private concern, then can the plaintiff recover presumed damages without showing ny times malice?

Back 51

yes, presumed damaages would include punitive damages

Front 52

In regards to a private person, if all that he can show is negligence, then what type of damages can he get?

Back 52

the only damages the plaintiff can get is actual damages

Front 53

May a private individual who sues for defamation be awarded punitive damages when liability is not based on knowledge of falsity or reckless disregard of the truth?

Back 53

no

Front 54

what does a private person have to show to get punitive damages?

Back 54

you have to show common law malice, that being the desire to injure

Front 55

what are privileges in regards to defamation?

Back 55

excuses liability even though all the elements of the tort have been demonstrated

Front 56

what are absolute privileges?

Back 56

in some invironments its so important that people speak freely that we have to allow them to say things that may even be defamatory

Front 57

what are the three absolute privileges?

Back 57

1. judicial proceedings
2. legislative proceedings
3. executive proceedings

Front 58

what is a qualified privilege?

Back 58

a privilege to defame someeone else in order to protect a greater interest

Front 59

what are some types of situations which can create a qualified privilege?

Back 59

1. self interest
2. interest of another
3. mutual interest
4. public interest

Front 60

what are some ways one can lose the qualified privilege?

Back 60

1. excessive publication that is unreasonable.
2. improper motive
3. common law malice (ill will and desire to injure)
4. in most jurisdiction you can also lose the privilege if you dont believe the statement is true or you have no reasonable basis for believing it to be true (this is negligence)

Front 61

when a former employer communicates with a new or prospective employer about a former employee,does a conditional privilege arise from a discharge f duty owed to the new or prospective employer?

Back 61

yes

Front 62

if a defendant acts with malice or in reckelss disregard of the truth, does he lose his conditional privilege to defame?

Back 62

yes

Front 63

What two questions must we ask when reviewing privileges?

Back 63

1. is this a situation where the defendant has a privilege to defame? defendant has the burden of proving that
2. has the defendant somehow lost that privilege. Plaintiff must prove that the defendant acted in such a way that he should lose this privilege

Front 64

when we have a situation where defamation is a cause action, what other causes of action must we look for?

Back 64

1. invasion of privacy
2. intentional and negligent infliction of emotional distress

Front 65

what is an invasion of privacy?

Back 65

An intentional invasion into a sphere that a reasonable person would consider to be private.

Front 66

What is commercial Appropriation?

Back 66

using someone's voice/image without compensating for them. Using someons likeness for commercial benefit.

Front 67

what is false light?

Back 67

simply a statement that is not true, but its not something that will make someone subject to hatred and scorn. It must be intentional, objectionable to a reasonable person to be protrayed in this light, but its not necessarily defamatory. It must have widespread publication.

Front 68

at this time, do federal courts say that a plaintiff on a false light invasion of privacy theory must show ny times malice to get presumed damages?

Back 68

yes

Front 69

what is Public disclosure of private facts?

Back 69

the disclosure of true, but very private facts, the disclosure of which would be objectionable to the reasonable person of typical sensitivities. It requires a widespread publication.

Front 70

are the commission of crimes, prosecutions resulting from it, and judicial proceedings arising from the prosecutions, events of legitimate concern to the public?

Back 70

yes, they are without questio, events that fall within the responsibility of the press to report operations of the government

Front 71

what do we look at as a defense to the public disclosure of private facts?

Back 71

are these facts something of a legitimate public concern?

Front 72

what is breach of confidence?

Back 72

where true private facts are disclosed in violation of some duty not to disclose that information (ie medical records)

Front 73

if the standard is public figure plaintiff vs any defendant, what must he prove to get damages?

Back 73

he would have to prove ny times malice to get presumed damages

Front 74

if the standard is a private plaintiff vs any defendant on a public concern, what must he prove to get damages?

Back 74

if he can prove negligence, he can get actual damages

if he can prove ny times malice, he can get presumed damages

Front 75

if the standard is a private plaintiff vs any defendant on a private concern, what must he prove to get damages?

Back 75

he must prove negligence to get presumed damages

Front 76

what must you prove to get punitive damages?

Back 76

you must prove common law malice which is a malicious, willful or desire to injure

Front 77

In an essay, what are the two consitutional questions we must always ask after damages?

Back 77

1. is the plaintiff a public figure or a private figure?
2. is the matter of a public or private concern?

Front 78

In a defamation essay, where do we have to prove fault twice?

Back 78

We first must discuss it under damages, then we must discuss it under standard and falsity

Front 79

In reviewing attachment, what are the two issues we look at?

Back 79

1. problems with part of a group
2. are extrinsic facts needed?

Front 80

In regards to publication, what three things we we discuss?

Back 80

whether the act of publication was intentional, negligent, and whether it was foreseeable for republication