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.
    • 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.