Bar Review

Defamation

Defamation

At common law, requires that:

1. The defendant made a defamatory statement at specifically identifies the plaintiff
   • A defamatory statement is one that harms one's reputation
   • Usually involves an allegation of fact that reflects adversely on one's character.
   • A statement of opinion is only defamatory if it implies facts.
   • The plaintiff must be alive at the time the statement is made.
2. The statement must be published. (Shared with one other person)
   • It doesn't have to be intentionally published. A negligent publication is sufficient.
   • People spreading it can each be liable too as republishers.
3. Damages
   • Damages are presumed and thus not proven for libel.
     • Libel is defamation in a permanent medium.
   • Slander per se also has damages presumed.
     • Slander per se is a statement:
       1. Related to one's business or occupation
       2. That one has committed a serious crime (violence or dishonesty)
       3. That imputes unchastity to a woman
       4. That one has a loathsome disease (leprosy or an venereal disease)
   • Other forms of slander require damages to be proven.

Defenses

1. Consent
2. Truth
3. Privilege
   • Absolute privilege for spouses or government officers in their work
   • Qualified privilege occurs when there is a public interest in encouraging candor
     • References and recommendations
       • Person must have a reasonable and good faith basis
       • Must confine oneself to the matter at hand

If subject is a matter of public concern (newsworthy), two additional elements are required for defamation:

1. The plaintiff must prove the statement is false.
2. The plaintiff must show some degree of fault.
   • Public figures must show that the statement was made despite knowing it was false or with reckless disregard of its veracity. (Made with malice)
   • Private figures must show that the statement was made negligently.