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1. Defamatory language on the part of the defendant 2.Defamatory language must be of or concerning the plaintiff 3.Publication of the defamatory language by the defendant to a third person; and 4.Damage to the reputation of the plaintiff.

Defamation

Two extra elements must be proved 1. Falsity of the defamatory language 2.Fault on the defendants part

Defamation of Public Figure or on matters of public concern

Not all defamation consists of direct remarks. Pictures, satire, drama, etc., may convey an actionable defamatory meaning.

Methods of Defamation

While a statement of fact may always be defamatory, a statement of opinion is action-able only if it appears to be based on specific facts, and an express allegation of those facts would be defamatory

Statements of Opinion

1. Individual - any LIVING person may be defamed 2. Corporation, Unincorporated Association, Partnership

Who may be defamed?

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

Of or concerning the plaintiff

1. All members of a small group - Where the defamatory language refers to all members of a small group, each member may establish that the defamatory statement was made of and concerning him by alleging that he is a member of the group 2. All members of a large group - If, however, the defamatory statement refers to all members of a large group, no member of that group may establish this element of the cause of action 3. Some members of a small group - Where the defamatory language refers to some members of a small group, plain-tiff can recover if a reasonable person would view the statement as referring to the plaintiff.

Group Defamation

A statement is not actionable until there has been a “publication.” The publication requirement is satisfied when there is a communication to a third person who understood it. Example:Libby saw a defamatory statement about Jeffrey printed in Russian. The publication requirement is not met unless it is shown that Libby understood the foreign words.The communication to the third person may be made either intentionally or negligently

Publication

Once publication is established, it is no defense that defendant had no idea that she was defaming plaintiff because she neither knew nor had reason to know that plaintiff existed (use of fictional name), nor knew that the publication was defamatory. It is the intent to publish, not the intent to defame, that is the requisite intent. Example: Defendant published a false statement that Plaintiff had given birth to twins. If Defendant neither knew nor had reason to know that Plaintiff had been married only one month, Defendant is nonetheless liable.

Only intent to publish required

However, as to publication of a defamatory statement in a number of copies of the same newspaper, magazine, or book, most American courts have adopted the “single publication” rule. Under this rule, all copies of a newspaper, magazine, or book edition are treated as only one publication. The publication is deemed to occur when the finished product is released by the publisher for sale (a matter which is, obviously, most important for the running of the statute of limitations). Damages are still calculated on the total effect of the story on all of the readers.

"Single Publication Rule" - Statute of Limitation

1. Primary Publisher - Each individual who takes part in making the publication is charged with the publication as a primary publisher; e.g., a newspaper or TV station carrying a defamatory message would be viewed as a primary publisher and held responsible for that message to the same extent as the author or speaker. Note, however, that an Internet service provider is not treated as a publisher when a user of its service posts defamatory content. 2. Republisher - A republisher (i.e., one who repeats a defamatory statement) will be held liable on the same general basis as a primary publisher. This is so even if the repeater states the source or makes it clear that she does not believe the defamation. Note: Where there has been a republication, the original defamer’s liability may be increased to encompass any new harm caused by the repetition if the republication was either (i) intended by the original defamer or (ii) reasonably foreseeable to her 3. Secondary Publisher - One who is responsible only for disseminating materials that might contain defamatory matter (e.g., a vendor of newspapers, a player of a tape) is viewed as a secondary publisher. Such individuals are liable only if they know or should know of the defamatory content

Who may be liable?

General damages are presumed by law and need not be proved by the plaintiff. They are intended to compensate the plaintiff for the general injury to her reputation caused by the defamation. Constitutional free speech and press considerations may restrict an award of presumed damages when the defamation involves matters of “public concern.”

General or Presumed damages

Special damages in a defamation law context means that the plaintiff must specifically prove that she suffered pecuniary loss as a result of the defamatory statement’s effect on her reputation, and are not proved merely by evidence of actual injury—such as the loss of friends, humiliation, or wounded feelings. The loss of a job, a prospective gift or inheritance, an advantageous business relationship, or customers are pecuniary losses such as those contemplated by the special damages requirement.

Special Damages

Libel is a defamatory statement recorded in writing or some other permanent form. A libel may also be recorded by radio or television in some circumstances

Libel

In most jurisdictions, general damages are presumed by law for all libels; i.e., special damages need not be established. A substantial minority of courts distinguish between libel per se and libel per quod in determining whether a libel is actionable without proof of special damages

Slander

These courts take the position that injury to the reputation of the plaintiff is presumed by law only if the statement is libelous and defamatory on its face (libel per se). Thus, such libels are actionable without pleading or proving special damages

Libel per se

The libelous statement that is not defamatory on its face, but that requires reference to extrinsic facts to establish its defamatory content, is characterized as libel per quod by these courts. These courts generally require special damages to be pleaded and proved for such libel

Libel per quad

Slander is spoken defamation. It is to be distinguished from libel in that the defamation is in less permanent and less physical form. Where the original defamation is libel, any repetition, even if oral, is also libel. On the other hand, the written repetition of a slander will be characterized as libel Most courts today treat defamation in radio and television broadcasts as libel, regardless of whether it was scripted.

Slander

Special Damages Usually Required In slander, injury to reputation is not presumed. Thus, ordinary slander is not actionable in the absence of pleading and proof of special damages.

Damage rules for slander

If, however, the spoken defamation falls within one of four categories, characterized as slander per se, an injury to reputation is presumed without proof of special damages 1. Business or Profession 2.Loathsome Disease 3.Crime involving moral turpitude 4. Unchastity of a woman (or man in some jurisdictions0

Slander per say

Defamatory on its face

Per Say

At common law, a defamatory statement was presumed to be false. The Supreme Court, however, has rejected this presumption in all cases in which the plaintiff is constitutionally required to prove some type of fault. In these cases, the plaintiff must prove as an element of the prima facie case that the statement was false.

Falsity

Where the statement published is such that its defamatory potential was apparent to a reasonably prudent person, the plaintiff must show that the defendant permitted the false statement to appear, if not through actual malice, at least through negligence as to its truth or falsity Although at common law defamation liability could be strict, a number of Supreme Court decisions based on the First Amendment now impose a fault requirement in cases involving public figures or matters of public concern. The degree of fault to be established depends on the type of plaintiff, i.e., whether he is a public official or public figure as compared with a private person involved in a matter of public concern.

Fault on Defendants part

Actual Malice Required - A public official may not recover for defamatory words relating to his official conduct in the absence of “clear and convincing” proof that the statement was made with “actual malice.” (See below.) [New York Times v. Sullivan, 376 U.S. 254 (1964)] The rule of New York Times v. Sullivan has been extended to cover litigation where the plaintiff is a public figure.

Fault - Public Officials and Figures

The rule of New York Times v. Sullivan has been extended to cover litigation where the plaintiff is a public figure. A person may be deemed a “public figure” on one of two grounds: (i) where he has achieved such pervasive fame or notoriety that he becomes a public figure for all purposes and contexts (e.g., celebrity sports figure); or (ii) where he voluntarily assumes a central role in a particular public controversy (e.g., prominent commu-nity activist) and thereby becomes a “public figure” for that limited range of issues. [Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974)]

Public Figure

A) Knowledge that the statement was false, or b) Reckless disregard as to its truth or falsity. - It must be shown that the defendant was subjectively aware that the statement he published was false or that he was subjectively reckless in making the statement. Reckless” conduct is not measured by a reasonable person standard or by whether a reasonable person would have investigated before publishing. There must be a showing that the defendant in fact (subjectively) entertained serious doubts as to the truthfulness of his publication. It is not enough that the defendant is shown to have acted with spite, hatred, ill will, or intent to injure the plaintiff. Assuming the defendant was in fact negligent in ascertaining the truth of what it published—but still it had no actual knowledge of the falsity, nor was it guilty of reckless disregard for the truth—damages can be recovered but are limited to the “actual injury” sustained by the plaintiff; i.e., presumed damages are prohibited New York Times v. Sullivan

What is actual malice?

When the defamatory statement involves a matter of public concern, Gertz imposes two restrictions on private plaintiffs: (i) it prohibits liability without fault, and (ii) it restricts the recovery of presumed or punitive damages.

Private Persons

The Supreme Court has deliberately chosen not to define this term, but has stated that it is not limited to out-of-pocket loss. It may include impairment of reputation and standing in the community, personal humiliation, and mental anguish and suffering (i.e., an injury to reputa-tion not resulting in special damages may still be actionable). The important point is that there must be competent evidence of “actual” injury (no presumed damages), although there need be no evidence that assigns an actual dollar value to the injury

Actual injury

It follows that if the plaintiff cannot prove “actual injury,” he cannot recover any damages, unless he can show that the publication was made with knowledge of its falsity or with reckless disregard for the truth. There is no constitutional protection for publications made with “knowl-edge or reckless falsity,” and hence, the plaintiff is entitled to whatever recovery is permitted under state law in such cases (i.e., “presumed” or general damages and even punitive damages in appropriate cases). Note that this approach is simply a restatement of the general rule in torts that damages must be proved in negligence actions (see infra, III.E.) but usually are not required where the defendant is more culpable, such as for intentional torts

Presumed Damages or Punitive Damages Allowable Where Actual Malice Found

No Constitutional Limitations - When the defamatory statement involves a matter of purely private concern, the constitutional limitations established by Gertz do not apply; only the four elements of the common law prima facie case are required. Thus, presumed and punitive damages might be recoverable even if actual malice is not established. Note, though, that many states now require proof of negligence as a matter of state law even for defamation on matters of private concern

Matters of purely private concern

To determine whether the matter is a public or private concern, the courts will look to the content, form, and context of the publication. [Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., supra]Example: In Dun & Bradstreet, the Court determined that a credit agency’s erroneous report of plaintiff’s bankruptcy, distributed to five subscribers, was speech solely in the private interest of the speaker and its specific business audience. The content (the bankruptcy of a Multistate 09 torts Q.indd 309/23/2016 10:22:50 AM TORTS 31.small business), the form (a credit agency report), and the context (a communication to only five subscribers) established that a matter of public concern was not involved

What is a matter of public concern?

1. Consent 2. Truth 3. Absolute privilege

Defenses to defamation

Under certain circumstances, the speaker is not liable for defamatory statements because he enjoys an absolute privilege. Such absolute privileges are not affected by a showing of malice, abuse, or excessive provocation, as in the case of qualified privileges 1. Judicial proceedings All statements made by the judge, jurors, counsel, witnesses, or parties in judicial proceedings are absolutely privileged. The privilege attaches to all aspects of the proceedings, e.g., statements made in open court, pretrial hearing, deposition, or in any of the pleadings or other papers in the case. 2.Legislative proceedings All remarks made by either federal or state legislators in their official capacity during legislative proceedings are likewise absolutely privileged 3.Executive Proceedings A governmental executive official is absolutely privileged with respect to any statement made by her while exercising the functions of her office.There is a requirement that the statement have some reasonable relationship to the executive matter or proceeding in which she is acting 4.“Compelled” Broadcast or Publication - A radio or TV station compelled to allow a speaker the use of the air, a newspaper compelled to print public notices, etc., is absolutely privileged in an action based on the content of the compelled publication

Absolute privilege

In certain situations, a speaker may say something defamatory without being liable because of the existence of a qualified privilege. 1.Reports of Public Proceedings 2. Publication to one acting in public interest 3. Fair Comment and criticism The defendant bears the burden of proving that a privilege exists. If the privilege is qualified, the plaintiff then bears the burden of proving that the privilege has been lost through excessive publication or actual malice.

Qualified privilege

A qualified privilege exists only if exercised in a reasonable manner and for a proper purpose. Thus, even though the facts might otherwise give rise to a quali-fied privilege situation, the actor may have lost this privilege by virtue of his conduct. There are two basic ways in which this generally occurs: 1. statement not within scope of privilege 2.actual malice

Loss of qualified privilege

Several matters, while not defenses to an action, may be considered by the trier of fact on the issue of damages. These include: 1. No actual malice 2. Retraction - Unless made immediately after publication so as to negate the defamatory effect of a statement, retraction does not undo the wrong. But the court may consider it to show lack of actual malice in mitigation of damages. A failure to retract after a request to do so is often allowed as evidence to the opposite effect 3.Anger - Anger of the speaker may be a mitigating circumstance if provoked by the plaintiff.

Mitigating factors

The right to protection against unreasonable interferences with an individual’s solitude is well recognized. The tort of invasion of privacy as it has developed, however, includes protection of “personality” as well as protection against interference with solitude. In all, the tort includes the following four kinds of wrongs 1.Appropriation by defendant of plaintiff’s picture or name for defendant’s commercial advantage 2.Intrusion by the defendant upon plaintiff’s affairs or seclusion; 3.Publication by the defendant of facts placing the plaintiff in a false light 4.Public disclosures of private facts about the plaintiff by the defendant.

Invasion of right to privacy

Unauthorized use by defendant of plaintiff’s picture or name for defendant’s commercial advantage. Liability is generally limited to the use of plaintiff’s picture or name in connection with the promotion or advertisement of a product or service, e.g., use of plaintiff’s picture to advertise an automobile.

How to prove a case of invasion of privacy

1) Act of prying or intruding on the affairs or seclusion of the plaintiff by the defendant; For liability to attach, there must be an invasion of the plaintiff’s private affairs or seclusion; e.g., defendant puts a microphone in plaintiff’s bedroom. 2) The intrusion is something that would be highly offensive to a reasonable person; and 3) The thing to which there is an intrusion or prying is “ private.” For liability to attach, the intrusion by defendant must be into something within the plaintiff’s own private domain. Thus, for example, taking pictures of a person in a public place is not actionable

Intrusion on Plaintiff’s Affairs or Seclusion

1) Publication of facts about plaintiff by defendant placing plaintiff in a false light in the public eye; For liability to attach, there must be publicity concerning the “false light” facts; this requires more than “publication” in the defamation sense 2) The “false light” is something that would be highly offensive to a reasonable person under the circumstances; A fact will be deemed to present plaintiff in a false light if it attributes to him:(i) Views that he does not hold, or(ii) Actions that he did not take.Note: This element involves falsity and, as such, may also involve defamation if the falsity affects reputation 3) Actual malice on the part of defendant where the published matter is in the public interest. the Supreme Court held that the First Amendment prohibits recovery for invasion of privacy in cases where the published matter is of public interest, unless the plaintiff establishes that the defendant acted with actual malice the Supreme Court held that the First Amendment prohibits recovery for invasion of privacy in cases where the published matter is of public interest, unless the plaintiff establishes that the defendant acted with actual malice

Publication of Facts Placing Plaintiff in False Light

1) Publication or public disclosure by defendant of private information about the plaintiff; For liability to attach, there must be publicity concerning a private fact; i.e., the disclosure must be a public disclosure, not a private one. The facts disclosed must be “private.” For example, there is no liability for matters of public record, since these facts are not private. Liability may attach under this privacy branch if the elements of a prima facie case are satisfied even though the factual statement about the plaintiff is true 2) The matter made public is such that its disclosure would be highly offensive to a reasonable person. The rationale of Time, Inc. v. Hill appears to encompass this branch of the invasion of privacy tort as well. In other words, if the matter is one of legitimate public interest, the publication is privileged if made without actual malice.

Public Disclosure of Private Facts About Plaintiff

Where the matters republished are taken from official public records, there is an absolute constitutional privilege (e.g., rape victim’s name obtained from police records or court proceedings used in newspaper article)

Absolute Privilege with Regard to Matters of Public Record

You do not need to prove this in an action for invasion of privacy

Special damages in invasion of privacy action

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