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80 Cards in this Set

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What is the barf for defamation
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
what are the two constitutional requirements in regards to defamation?
fault and falsity
what are the three manners a plaintiff can use to prove that the statement attached to him
1. Colloquium
2. inducements
3. innuendo
what is publication in regards to defamation?
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)
what is the single publication rule?
most courts have found that each edition of a book or magazine is a publication rather than each copy being a publication
when a defendant makes a defamatory statement, can be be liable not only for the immediate publication, but any foreseeable re-publication?
May secondary publishers be held liable for defamation?
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.
In regards to publications from wire services, can they be held to strict liability?
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
what are the two forms of action for defamation?
libel and slander
what is libel?
originally concerned with written or printed words, now libel is anything permanent.
what is slander?
Originally oral, now includes anything transitory
In libel, is the plaintiff entitled to presumed damages?
is a plaintiff awarded automatic presumed damages in regards to slander?
no, plaintiff must show actual financial loss to recovery (pecuniary)
what are the four categories of slander per se?
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
what is the barf for libel?
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.
what are the factors to be considered in regards to an action being libel or slander?
the area of dissemination, the deliberate and premeditated character of its publication, and the persistence of the defamation are factors to be considered.
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?
in a commonlaw defamation action, is truth an affirmative defense?
yes, the defendant must raise it and have the burden of proof
when a plaintiff can get presumed damages on a showing of common law malice, can he also get punitive damages?
How must special damages be proved?
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.
For a plaintiff to get punitive damages, what must he prove first?
he must prove that he can get presumed damages (on a common law showing of malice)
If the statement is a simple slander statement, must plaintiff show actual fiancial loss before he recovers anything?
If a statement is libel, does the plaintiff have to show actual financial loss?
no, he already has presumed damages, (go straight to the pot of gold)
does the majority of a community have to think less of a person to find that the statement made about him was defamatory?
may a plaintiff sue for IIED when the underlying act is barred from suit for unconstitutional reasons?
no, see hustler v fallwell
If a group that is defamed is large, may they sue?
no none of the individuals can sue even though the language used is inclusive
If the group that is defamed is small and each and every member is referred to, may suit be brought?
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
what is an all purpose public figure?
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)
What is a limited purpose public figure?
treated like a public figure. Someone who has thrust themselves into an existing controversey to try to influcence public opinion.
can one be made a limited purpose public figure?
In regards to a limited purpose public figure, must the statement that is made be relevant to that persons role in the controversey?
In regards to a Limited Purpose Public Figure, if the state that is made is not relevant to the controversy, what happens?
then the defamed is a private person
Is it possible to become a limited purpose public figure involuntarily if you are somehow drawn into a controversey?
yes, but the courts are more and more drawing back from who could be a public figure
what is common law malice?
the willful desire to injure (totally different creature from malice)
what is NY times Malice?
(actual malice) knowledge of falsity or acted with reckless disregard for the truth
When proving NY Times Malice, do you have to show all other elements of defamation?
what is Reckless Disregard?
the defendant had to have published entertaining serious doubts as to its truth
What is negligence in regards to defamation?
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?
what are presumed damages?
money and emotional distress losses but dosent require any proof, whatever damges the jury thinks plaintiff must have suffered.
what are actual damages?
quantifiable money and emotional loss
what is Pecuniary Loss?
quantifiable money loss
what is the constitutional overlay on top of commonlaw defamation?
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.
what is the burden of proof for a public figure plaintiff vs any defendant?
Ny times malice for both medica defendants and private defendants
if a public official can prove new york times malice, can he get presumed damages?
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?>
What level of proof must a public plaintiff prove new york malice
by clear and convincing evidence
if a misquotation materially changes the statement, does that show knowledge of falsity and satisfy ny times ?
In regards to defamation of a public figure, is reckless conduct measured by the reasonable person standard?
no, because as mere negligence is never sufficient to show "actual malice"
What are the five elements the court applied in regards to determining the status as a voluntary public figure?
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
what is the standard for private plaintiff vs any defendant on a public concern?
If they can prove negligence, they can get actual damages

if they can prove ny times malic, they can get presumed damages
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?
yes, presumed damaages would include punitive damages
In regards to a private person, if all that he can show is negligence, then what type of damages can he get?
the only damages the plaintiff can get is actual damages
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?
what does a private person have to show to get punitive damages?
you have to show common law malice, that being the desire to injure
what are privileges in regards to defamation?
excuses liability even though all the elements of the tort have been demonstrated
what are absolute privileges?
in some invironments its so important that people speak freely that we have to allow them to say things that may even be defamatory
what are the three absolute privileges?
1. judicial proceedings
2. legislative proceedings
3. executive proceedings
what is a qualified privilege?
a privilege to defame someeone else in order to protect a greater interest
what are some types of situations which can create a qualified privilege?
1. self interest
2. interest of another
3. mutual interest
4. public interest
what are some ways one can lose the qualified privilege?
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)
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?
if a defendant acts with malice or in reckelss disregard of the truth, does he lose his conditional privilege to defame?
What two questions must we ask when reviewing privileges?
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
when we have a situation where defamation is a cause action, what other causes of action must we look for?
1. invasion of privacy
2. intentional and negligent infliction of emotional distress
what is an invasion of privacy?
An intentional invasion into a sphere that a reasonable person would consider to be private.
What is commercial Appropriation?
using someone's voice/image without compensating for them. Using someons likeness for commercial benefit.
what is false light?
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.
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?
what is Public disclosure of private facts?
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.
are the commission of crimes, prosecutions resulting from it, and judicial proceedings arising from the prosecutions, events of legitimate concern to the public?
yes, they are without questio, events that fall within the responsibility of the press to report operations of the government
what do we look at as a defense to the public disclosure of private facts?
are these facts something of a legitimate public concern?
what is breach of confidence?
where true private facts are disclosed in violation of some duty not to disclose that information (ie medical records)
if the standard is public figure plaintiff vs any defendant, what must he prove to get damages?
he would have to prove ny times malice to get presumed damages
if the standard is a private plaintiff vs any defendant on a public concern, what must he prove to get damages?
if he can prove negligence, he can get actual damages

if he can prove ny times malice, he can get presumed damages
if the standard is a private plaintiff vs any defendant on a private concern, what must he prove to get damages?
he must prove negligence to get presumed damages
what must you prove to get punitive damages?
you must prove common law malice which is a malicious, willful or desire to injure
In an essay, what are the two consitutional questions we must always ask after damages?
1. is the plaintiff a public figure or a private figure?
2. is the matter of a public or private concern?
In a defamation essay, where do we have to prove fault twice?
We first must discuss it under damages, then we must discuss it under standard and falsity
In reviewing attachment, what are the two issues we look at?
1. problems with part of a group
2. are extrinsic facts needed?
In regards to publication, what three things we we discuss?
whether the act of publication was intentional, negligent, and whether it was foreseeable for republication