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Libel
defamation in a written or other graphic/published form
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what can be publications
TV and radio broadcasts
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slander
spoken defamation
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business or product disparagment
defamation concerning a business or its product
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forms of defamation
- libel
- slander
- business/product
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Elements of Defamation
- published or spoke
- a false statement
- that was defamatory
- concerning the plaintiff
- while acting with either actual malice or negligence
- damages
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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
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presumed publication for
mass media
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Publishers and vendors are not subject to publication liability unless
they knew or had some reason to know of the defamation
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absolute defense to defamation
truth
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what is the standard of falsity (2nd element of defamation)
substantial truth
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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)
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expression of opinion
courts protect statements of opinion under the 1st amendment or for practical reasons
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factors courts consider for expressions of opinion
- precision of language
- verifiability
- context, including cautionary language
- type of writing or speech
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opinions can't...
imply false statements of objective fact
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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"
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injury to reputation is...
defamation per se
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examples of defamation per se
commission of a crime, loathsome disease, professional misconduct, sexual misconduct, racism, financial ruin
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examples not qualifying for defamation per se (without more)
phony, cheat, crook, liar
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injury to reputation presumption
law presumes that reputation is damaged, so plaintiff can recover without proof of injury
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reputation...
must be capable of being harmed
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what is protected under defamation
parody/satire
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injury to reputation requirement
reputation must be capable of being harmed
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identification (4th element of defamation)
"concerning the plaintiff"; others must reasonably understand that the plaintiff is the one referred to
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how plaintiff can be identified
- name
- nickname
- photograph
- references that would identify only one person
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types of defamation
- individual
- group
- friends and family
- deceased individuals
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standards of defamation (5th element of defamation)
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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
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public figure categories
- general-purpose public figure
- limited-purpose public figure
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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
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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
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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
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public figure the standard is
actual malic
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actual malice is...
knowledge of falsity or with "reckless disregard" for the truth
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"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
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the standard for private individuals is...
negligence
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negligence is...
failing to do what an ordinary reasonable person would do in similar circumstances
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"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
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types of damages for defamation (6th element)
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general damages for defamation
- for hurt feelings, mental suffering, or anguish
- within discretion of jury/judge
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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
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punitive damages for defamation
must be established by clear and convincing evidence that defendant acted with actual malice, fraud, or gross negligence
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defenses to defamation
- absolute privilege
- qualified privilege
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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
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Qualified privilege allows...
an individual to completely, fairly, and accurately report what happens at a governmental or judicial proceeding
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rationale for qualified privilege
publisher is acting as the eyes and ears of those not in attendance
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qualified privilege protects...
a report's official parts, not the outside sources
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conditions for qualified privilege
- statements can not be made in actual malice
- issues must be of public interest and within scope
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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
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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
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