Torts- Defamation

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Categories of Defamation

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COMMON LAW DEFAMATION
-Libel (defamatory its face)

-Libel that is one of 4 nasties

-Libel Per Quod (defamatory only by extrinsic fact)(note: "per quod" is NY term)

Libel Per Quod involving 1 of 4 nasties

-Slander (on its face)

-Slander (only by extrinsic fact)

-Slander Per Se (on its face)

-Slander Per Se (only by extrinsic fact)

FIRST AMENDMENT DEFAMATION -When matter is of private concern + private person

-When Matter is of Public Concern

-When Matter is about a Public Figure/Official (i.s. P is Public Figure or Official)

Hint 1

Note: This is just the way I group them in my head - they aren't Barbri lists.

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Prima Facie Case for Defamation (not Constitutional Defamation)

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1. Defamatory Statement

2. Of and Concerning a Living P

3. Publication

4. Damages, Maybe - depends on category of defamation

And don't forget about defenses

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Libel - MBE Rules about Proving Damages

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Don't need to prove damages for guilty verdict.

Note: NY distinction when Libel per Quod. Libel per Quod + 1 of the 4 nasties = P must prove special damages

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Libel - NY Rules about Proving Damages

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Libel Per Quod + Not one of the 4 nasties = P must prove Special Damages. (i.e. if it is libel per quod plus one of 4 nasties - no need to prove special damages)

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Slander - MBE Rules about Proving Damages

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Slander Per Se > P doesn't need to prove damages


Slander other than Slander Per Se > Need proof of concrete economic harm

Note: NY different.

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Slander - NY Rules about proving damages

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Don't need to prove special damages if defamatory on its face + The 4 nasties


But for all other types of slander, you must prove special damages.

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When is a statement defamatory?

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If it tends to adversely affect P's Reputation

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I call Bridget a Bitch to Ellie and Allie. Bridget sues me for defamation.


I claim this wasn't a defamatory statement - what result?

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I'm right. Rule: mere name calling not enough b/c lacks ability to hurt reputation.

However, watch out for the 4 nasties here.

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I tell Ellie and Allie that Bridget is embezzling money from the school she teaches at. Bridget wants to sue me for defamation, but I tell her what I said wasn't a defamatory statement. What result?

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This is a defamatory statement.

Rule: an allegation or assertion of fact that reflects negatively on a trait or character is defamation.

Here, I am trashing Bridget's character trait of honesty.

Rule: When you diss someone's character trait of: honesty, competence, loyalty, sexual propriety >> this is usually defamatory statement

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But what if I tell Allie and Ellie that I THINK Bridget is embezzling $$ from her school?

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Rule: For "statements of opinion" the test is:

"would a reasonable listener would conclude that is is based on fact?"

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What is what I say is not defamatory "on it's face," but extrinsic facts show my statement was defamatory?

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P is permitted to offer context to show defamatory impact.

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"Of and Concerning the P"

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P must establish that a reasonable reader, listener, or viewer would understand the defamatory statement referred to the P.

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Can you defame a dead person?

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No.

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Publication

Who do you have to publish to?

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Must be to someone other than the P. Even 1 other person is enough.

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Level of Intent required

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Intent to Publish (as opposed to Intent to Defame)

Intent = intentionally or negligently

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I tell Bridget she embezzled $$ from her school and had lots of pre-marital sex. She sues me. I claim no publication. What result?

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No publication. Rule: where a defamatory statement about a P is made only to the P, there is no publication and thus no defamation.

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What is the 5th area of Slander Per Se in NY? (The 5th Nasty)

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Imputing homosexuality to another

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Defenses to Defamation

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1. Obvi negating any of the elements such as defamatory statement, of and concerning P, publication

2. Consent - express or implied

3. Truth

4. The 2 kinds of Privilege - Absolute & Qualified

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Absolute Privilege
- what is this based on?
- 3 groups in applies to

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Based on speaker's identity or status

Only 3 groups have it
(1) Spouses

(2) Officers of 3 branches of state or federal govt.

(3)Attorneys/Witnesses in state or federal court

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Qualified Privilege
- what is it based on?
-what circumstances does it arise in?
- when do you lose the privilege?

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Based on purpose of speech.

Arises in circumstances where is there a public interest in promoting candor.

lose the privilege if what you say is outside the scope (i.e. is irrelevant to its purpose)

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First Amendment Defamation (FAD)

when does this arise?

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Matter of Public Concern _
OR
Public Figure/Official


2 extra elements for the prima facie in a FAD (falsity + fault).

NOTE: CL Defamation fault is negligent publication

NOTE: falsity & fault are prima facie case elements only in a FAD cases, NOT in a common law defamation case, because defamatory statements are presumed to be false, & D has the burden to prove truth as a defense

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Extra 2 elements for Prima Facie for when Matter of Public Concern + Public Figure/Official

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Falsity of statement
+
Malice (fault standard) (malice = knowledge that statement was false OE reckless disregard to whether is was false)

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Extra 2 elements for Prima Facie when Matter of Public Concern

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Falsity of statement

+

Malice = (Recklessness or Intent)

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Define Malice for FAD purposes

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Malice is the standard of fault required. Malice = EITHER (1) or (2)

(1) Knowledge that the statement was false OR

(2) Reckless disregard for whether it was true.

Front 25

After I take the bar exam, I advertise to moonlight as a bar exam tutor. Soon after, I get a letter in the mail saying: "To whom it may concern, Sarah Stein cheated on her law school exams. She is a stupid, dishonest, and a shyster." The letter was unsigned and without a return address. I am tweeking that the letter will be sent out to others in the community so I call up Nick to see if he got the letter about me. Nick wants to know what letter I am talking about, so I describe it saying "the letter calling ma a stupid, dishonest, and a shyster." And I read the letter outloud to Nick. Nick tells me he never got such a letter and did not know anyone who had. I later learn that Greg, a law-school rival of mine, had sent the letter to me and no one else. He was hoping to upset me because he wanted to be the only law tutor around.

If I sue Greg for defamation - what result?

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I win even though Greg only published it to me and I subsequently republished it Rule: If Plaintiff republishes the defamation in a goood faith inquiry to ascertain its dissemination - this is sufficient publication to a third party to hold Greg liable. i.e. its an exception the rule about self-publication not being imposing liability on the org. defamer. Memory tip: rationale makes sense - P was trying to put a stop to libel which is encouraged by court

Front 26

Fox does a Drudge Report on Taxi Cab Drivers Committing Consumer Fraud. They film Taxi Driver X , but commentator never said X engaged in dishonest behaivor and nothing on the tape is evidence to the contrary. After show airs, X looks like a fraud. X sues Fox for defamation.

What, if any, fault standard applies?

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Not a fault standard really b/c this is not FAD. Not a matter of public concern nor public official/figure.

Rule: This would be common law defamation action so the Plaintiff will win if the D' publication was negligent.

So here, X will win if Fox was negligent in depicting X as being a dishonest taxi driver.

Tip: would be easy to mistake this for FOD which requires fault (malice =intent of reacklessness). Don't be fooled just b/c show about consumer fraud does not mean the defamatory statement was a matter of public concern.