Entertainment Law

  1. Libel
    defamation in a written or other graphic/published form
  2. what can be publications
    TV and radio broadcasts
  3. slander
    spoken defamation
  4. business or product disparagment
    defamation concerning a business or its product
  5. forms of defamation
    • libel
    • slander
    • business/product
  6. Elements of Defamation
    • published or spoke
    • a false statement
    • that was defamatory
    • concerning the plaintiff
    • while acting with either actual malice or negligence
    • damages
  7. Publication (first element of defamation)defined
    when one person, in addition to the writer and the person defamed, sees or hears the material and that person understands the statement to be defamatory
  8. presumed publication for
    mass media
  9. Publishers and vendors are not subject to publication liability unless
    they knew or had some reason to know of the defamation
  10. absolute defense to defamation
  11. what is the standard of falsity (2nd element of defamation)
    substantial truth
  12. falsity and proven truth
    does the proven truth leave a different impression of the plaintiff in the minds of the jury than the impression created by the defamatory falsehood?

    example: story that XYZ was arrested for heroin, but really it was cocaine (not a different impression)
  13. expression of opinion
    courts protect statements of opinion under the 1st amendment or for practical reasons
  14. factors courts consider for expressions of opinion
    • precision of language
    • verifiability
    • context, including cautionary language
    • type of writing or speech
  15. opinions can't...
    imply false statements of objective fact
  16. What is defamatory? (3rd element of defamation)
    a communication is defamatory "if it tends to harm the reputation of another as to lower him in the estimation of the community or to deter third persons for associating or dealing with him, or if it tends to expose him to public hatred, contempt, or ridicule"
  17. injury to reputation is...
    defamation per se
  18. examples of defamation per se
    commission of a crime, loathsome disease, professional misconduct, sexual misconduct, racism, financial ruin
  19. examples not qualifying for defamation per se (without more)
    phony, cheat, crook, liar
  20. injury to reputation presumption
    law presumes that reputation is damaged, so plaintiff can recover without proof of injury
  21. reputation...
    must be capable of being harmed
  22. what is protected under defamation
  23. injury to reputation requirement
    reputation must be capable of being harmed
  24. identification (4th element of defamation)
    "concerning the plaintiff"; others must reasonably understand that the plaintiff is the one referred to
  25. how plaintiff can be identified
    • name
    • nickname
    • photograph
    • references that would identify only one person
  26. types of defamation
    • individual
    • group
    • friends and family
    • deceased individuals
  27. standards of defamation (5th element of defamation)
    • actual malice
    • negligence
  28. public officials
    • anyone elected
    • other gov't officials if
    • - he/she has a substantial responsibility for or control over governmental conduct
    • -does public have an interest in the qualifications and performance beyond that for all governmental employees?
    • -publication is about the official's job responsibilities or performance
  29. public figure categories
    • general-purpose public figure
    • limited-purpose public figure
  30. general-purpose public figures
    • public figures for all purposes and all contexts
    • household names
    • judged from the perspective community in which the story was published
  31. limited-purpose public figures
    individuals that have voluntarily thrust themselves into the forefront of particular public controversies (that existed before the publication) and must be actively seeking to influence public opinion and have access to communication channels necessary to do so
  32. factors of limited-purpose public figures
    • controversy at issue is "public" in that the issue's resolution will have widespread effect
    • plaintiff has more than a trivial or tangential role in the controversy
    • alleged defamation is germane to the plaintiff's participation in the controversy
  33. public figure the standard is
    actual malic
  34. actual malice is...
    knowledge of falsity or with "reckless disregard" for the truth
  35. "factors" of actual malice
    • focuses on the speaker's attitude toward the truth
    • defendant must have actual, subjective doubt about the truthfulness of the statement
    • not synonymous with ill will, spite, or evil motive
    • must be proved by clear and convincing evidence
  36. the standard for private individuals is...
  37. negligence is...
    failing to do what an ordinary reasonable person would do in similar circumstances
  38. "factors" of negligence
    • that which an ordinary, reasonable person would do under similar circumstances
    • jury or judge is to determine how the reasonable reporter/author/writer would have acted, if the defendant is below this standard then there is negligence
  39. types of damages for defamation (6th element)
    • general
    • special
    • punitive
  40. general damages for defamation
    • for hurt feelings, mental suffering, or anguish
    • within discretion of jury/judge
  41. special damages for defamation
    • loss of employment, lost income, loss of earning capacity
    • always needed to be supported by evidence in order to be entitled to special damages
  42. punitive damages for defamation
    must be established by clear and convincing evidence that defendant acted with actual malice, fraud, or gross negligence
  43. defenses to defamation
    • absolute privilege
    • qualified privilege
  44. absolute privileged communications
    • can't libel someone while speaking in a legislative or judicial forum (protects legislators, lawyers, and witnesses)
    • official communications or statements by public officials are also privileged
    • employer/ee communications
    • credit rating reports
    • personnel recommendations
  45. Qualified privilege allows...
    an individual to completely, fairly, and accurately report what happens at a governmental or judicial proceeding
  46. rationale for qualified privilege
    publisher is acting as the eyes and ears of those not in attendance
  47. qualified privilege protects...
    a report's official parts, not the outside sources
  48. conditions for qualified privilege
    • statements can not be made in actual malice
    • issues must be of public interest and within scope
  49. retraction statutes
    • not in texas
    • gives defendant an opportunity to retract story before the suit can be filed
    • retraction must be as prominent as alleged defamation
  50. SLAAP suits
    • not in texas,
    • "Strategic Lawsuits Against Public Participation"
    • attempts by the wealthy to silence press or critics through threats of litigation
    • if statement at issue arises from an issue of public concern, plaintiff must show a probability of success before suit can proceed
    • atty fees awardable
Card Set
Entertainment Law
spring 2009 final