Term
| What are the five requirements of the defamantion tort, at common law? |
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Definition
1. DEFAMATORY STATEMENT: Defendant's false statement, tending to harm plaintiff's reputation in a respectable segment of the community;
2. ABOUT PLAINTIFF: Of and concerning plaintiff. (Defamatory matter needn't refer to plaintiff by name, but it must be reasonable understood to refer to him.
3. PUBLICATION: Negligently or intentionally "published" (communicated) to at least one third person capable of understanding the statement;
4. FAULT: Some degree of fault as to falsity. (The precise degree depends on the nature of the defamer, the defamed, and the issue--however, at least negligence is always required);
5. SPECIAL HARM: For slander (but not libel), either "special" (i.e. pecuringay) harm, or "slander per se" (actionability regardless of the existence of such special harm.
MNEMONIC: F.PADS (Fault, Publication, About plaintiff, Defamatory statement, Special Harm).
NOTE: Which party bears the burden of proof regarding the statement's truth depends on the statement's subject matter. If it's a mater of public concern, the plaintiff has to prove its falsity; if not, the plaintiff only has to allege falstiy in his complaint, and the defendent has to prove the statement was true in order to use truth as an absolute defense.
N.B,: In order to be defamatory, a statement must be false; truth is an absolute defense to defamation. If a statement is true but seems like defamation, check to see if it's an invasion of privacy or intentional infliction of emotional distress. |
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Term
| There are two general types of defamation: libel and slander. What’s the difference between them? |
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Definition
In general, libel’s what you read, and slander’s what you hear. To be more technical about it, libel is defamation that is either written or in some permanent form; slander, on the other hand, is spoken, or “temporary” defamation.
FACTORS TO APPLY IN DISTINGUISHING THEM: Where it isn’t clear whether a defamatory statement is libel or slander, look to its:
1. Permanence: the more permanent = libel; the less = slander
2. Breadth of publication: the larger the area=libel; the smaller = slander.
3. Degree of premeditation: more so = libel; less so = slander.
NOTE: A number of states providing that all defamatory broadcasts (radio and tv) are slander, although the Restatement considers them libel.
SIGNIFICANCE OF DISTINCTION: For slander (except a special type called slander “per se”), the plaintiff has to prove so-called “special” damages in order to recover anything at all. Special damages are pecuniary losses, like a job or gift or business opportunities. Typically these kinds of damages are very hard to prove, so in a non-slander-per-se slander case, you are likely to have no recovery at all. |
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Term
| “Publication” is one of the elements of defamation. What does it mean? |
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Definition
It doesn’t mean publication in the ordinary sense, that is, printing and distributing a book or other written work. Instead it means communication to a third party who understands the statement (and understands its defamatory aspects). Specifically, look for defendant’s:
1. Intentionally or negligently communicating the defamatory statement;
2. To a third person (not the one defamed);
3. Who understands it. (Thus, if the audience is deaf or doesn’t speak the same language, there is no publication.)
NOTE: Negligent publication is where the defendant doesn’t intent to communicate the statement to a third party, but it was foreseeable that a communication would occur. For instance, if you send a letter to a blind person that defames her, it’s foreseeable that she’d have someone else read her the letter. You may not have intended to “publish” the defamatory statement to the letter reader, but it’s foreseeable that it would happen. |
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Term
| Does “per se” mean the same thing to libel as it does to slander? |
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Definition
| No. Libel per se is a statement that’s libelous “on its face” (that is, no additional facts needed to be proved to establish its defamatory nature). Slander per se, on the other hand, is a defamatory, spoken statement which doesn’t require proof of “special” (pecuniary) damages because it falls into one of four categories (statement reflects adversely on the plaintiff’s business or profession, or imputes a loathsome disease to him, or a moral turpitude crime, or serious sexual misconduct). |
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Term
| “Inducement” and “colloquium” both refer to additional facts necessary for a prima facie defamation claim, if the claim isn’t defamatory “on its face”. How can you tell them apart? |
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Definition
Ask why and who. If the additional facts show what makes the statement defamatory, the facts are “inducement” (e.g., a newspaper states that John Mulcahey just got marries; inducement is the fact that Mulcahey is a Catholic priest).
If the facts show who was defamed, the facts are “colloquium”. They help to satisfy the “of and concerning” requirement of defamation (e.g., a newspaper states that the president of the garden club is a whore; colloquium is the fact that Gladys Kravitz is the president of the garden club).
REMEMBER: “Whynducement” = why; “Coll-of-quium” = of.
SIGNIFICANCE: If it’s not clear why a statement is defamatory or who’s being defamed, the plaintiff will have to prove additional facts to satisfy those elements in order to prevail. Also, a few states make a distinction between libel per se and what’s called libel per quod, libel per quod being libel that’s not libelous on its face (that is, statements for which the plaintiff has to prove “inducement”). A few of the states making that distinction make the plaintiff prove special (pecuniary) damages in order to prevail with a libel per quod claim. |
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Term
| What’s the difference between “libel per se” and “libel per quod”? |
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Definition
“Libel per se” and “libel per quod” are distinctions drawn by a few courts. Libel per se is a statement defamatory on its face (i.e., no additional facts need to be proven to establish why it’s defamatory); libel per quod requires extrinsic facts to make it defamatory—that is, the plaintiff has to prove “inducement.” Libel per quod is treated in one of two ways.
1. Special (pecuniary) damages must be proven (this is the California approach); or
2. Special (pecuniary) damages must be proven unless the libel falls into one of the four slander “per se” categories (adverse to business/profession, or imputing loathsome disease, moral turpitude, serious sexual misconduct). |
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Term
| What are the four slander per se categories? |
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Definition
The four slander per se categories are statements:
1. Reflecting adversely on the plaintiff’s business or profession (e.g, calling a lawyer a shyster, a doctor a butcher, a military person a coward, a chauffeur a drunkard, - anything that discredits someone professionally);
2. Imputing serious sexual misconduct to the plaintiff;
3. Imputing to plaintiff a crime of moral turpitude;
4. Imputing that plaintiff currently suffers from a foul and loathsome disease (e.g., venereal disease).
SIGNIFICANCE: When a slanderous statement fits one of these categories, the plaintiff need not prove special (pecuniary) damages in order to recover.
MNEMONIC: the Business of Sex Crimes causes Disease (Business, Sex, Crime, Disease). |
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Term
| What’s the difference between “general” and “special” damages, in defamation? |
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Definition
Special damages are pecuniary losses caused by harm to plaintiff’s reputation; for instance, loss of a job, loss of a gift, loss of business, or any firm pecuniary expectation.
General damages reflect harm of a non-pecuniary nature; for instance, humiliation, mental anguish, harm to reputation with no financial repercussions; and the like.
NOTE: General damages are sometimes called “presumed” damages. |
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Term
| Why is the distinction between “general” and “special” damages so important in defamation? |
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Definition
The distinction is important because if a plaintiff can’t prove special damages, in a slander case outside the four slander per se categories, he can’t recover at all. And special damages are very hard to prove, so if you have to plead specials, you may well have no recover at all.
The rule is that if the plaintiff either proves libel or slander per se or special damages, general damages will be “tacked on”.
Special damages = pecuniary loss to plaintiff, e.g., lost job, inheritance, gift, customers, and the like.
General damages = damages for mental distress, damages to reputation or personal relationships, wounded feelings or humiliation, and the like. |
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Term
| What damages are available for libel? |
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Definition
It depends on whether or not the matter is libelous “on its face”, and whether the defendant is a media defendant (such that constitutional limitations kick in).
1. Non-media defendant: If the matter is libelous “on its face”, (i.e., no additional facts needed to be prove to establish its defamatory meaning), then plaintiff doesn’t have to prove special (pecuniary damages to prevail, and general damages will be presumed.
If the matter is not libelous on its face (that is, it’s “libel per quod”), there are three approaches: Most states treat it as regular libel. Others treat it as regular libel only if it would fit into one of the four “slander per se” categories; if it doesn’t, the plaintiff must prove special (pecuniary) damages in order to prevail. A few states (including California) require proof of special damages for any libel per quod.
In addition, the constitutional protections given to media defendants when the item concerns a matter of public interest (summarized below) probably, but not certainly, are also available to non-media defendants (e.g., if P is a public figure, P can’t recover anything without showing “actual malice”.)
2. Media defendant:
If P is not a public figure: P may recover actual damages merely on proof of negligence, whether or not a matter of public interest is involved. But if a matter of public interest in involved, P may recover “presumed” and “punitive” damages only upon showing of “actual malice” (knowledge of falsity or reckless disregard for the truth). If no matter of public interest is involved, P may recover presumed and punitive damages merely by showing negligence.
If P is a public figure: If a matter of public interest is involved, P may not recover anything (even actual damages) unless P proves “actual malice”. If P proves malice, the defamation isn’t entitled to any constitutional protection, and P can recover any damages the sate allows (e.g., special, general, punitive). If no matter of public interest is involved, it’s not clear whether P must prove actual malice, though probably he need not, at least to recover actual damages. |
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Term
| What damages are available for slander? |
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Definition
It depends on whether the defendant is a media defendant.
1. For non-media defendant: Plaintiff can recover special (punitive) damages, for instance, loss of a job, a gift, business or the like. Remember, if the slander doesn’t fit one of the four slander per se categories, plaintiff will have to prove special damages; if it does fit slander per se, plaintiff won’t have to prove special damages. So if plaintiff either has a slander per se claim or proves special damages, plaintiff can recover general damages – that is, compensation for the harm to plaintiff’s reputation. Also, non-media defendants probably get the same constitutional protections as media-defendants (e.g., if P is a public figure, P can’t recover anything without showing “actual malice”.)
1. For media defendant: Same rules apply as for libel. The most important sub-rule is that if P is a public figure or public official, and the matter is of public interest, P can’t recover anything without showing that D acted with “actual malice” (i.e., D either knew his statement was false or acted with reckless disregard of whether it was true or false). |
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Term
| What are the defenses and privileges available for defamation? |
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Definition
1. Consent;
2. Truth (with a media defendant and a matter of public concern, the plaintiff has to prove the statement is false; otherwise plaintiff only has to allege falsity in his complaint; he doesn’t have to prove it. Instead, defendant has to prove truth as an affirmative defense)’
3. Retraction (but only if it’s made immediately after the defamation and is so clearly connected with it that it effectively negates the defamation);
4. Absolute privileges (not abrogated by malice, abuse, etc.). Two types: Governmental and spousal.
Governmental: Legislators, both federal and state, performing their official duties are absolutely privileged to defame; the statement needn’t related to the proceedings at hand. (Statements of witnesses in legislative proceedings are absolutely privileged, but their comments do have to relate to the proceedings to be privileged). All participants in judiciary proceedings, starting when the complaint is filled, have an absolute privilege, as long as there’s some reasonable relationship between the statement and the matter at hand. High-ranking, policy-making officials (federal and state), within the scope of their duties, have an absolute privilege as long as the statement reasonably relates to their duties.
Spousal: Each spouse is absolutely privileged to utter defamation to the other spouse.
5. Qualified privileges (can be abrogated by malice, abuse, etc.). Qualified privilege protects defamatory statements bearing some relationship to a public or private interest, of either the publisher, the reader/listener, or both, or that of the general public.
Requirements for qualified privilege: First the defendant must believe the statement is true, and either have reasonable grounds for believing it or not have acted recklessly in determining its truth or falsity (states are split on reasonable/reckless issue). Second, the statement must be in furtherance of the interest to be protected. Third, it can’t be excessively published.
Examples of qualified privilege: protection of D’s own property (e.g., report to police accusing P of stealing D’s property); protection of a third party’s interest (e.g., D says to X, “P is stealing from you”); report of public proceedings (e.g., D prints article saying “In court testimony, X accused P of taking bribes”).
6. New York Times privilege: Protects media (press and broadcasters) from liability for publishing false statements about public figures, as long as the defendant doesn’t act with “actual malice” (that is, knowledge of falsity or reckless disregard for the truth). |
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Term
| What effect does a retraction have on defendant’s liability in a defamation case? |
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Definition
It can serve one of four purposes:
1. It can serve as a defense, but only if it’s made immediately after the defamation and is so clearly connected with it that it effectively negates the defamation (many states have statutes to this effect);
If the retraction doesn’t meet that standard, it can be used to:
2. Prove that actual damages are less than the plaintiff claims they are;
3. Negate the malice requirement, or show that punitives aren’t warranted; or
4. When the defendant has a qualified privilege to defame, the retraction may show defendant’s good intentions, indicating that the privilege wasn’t abused. |
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