Torts-Defamation

• 1. D must make defamatory statement specifically identifying the P.
• 2. D. Must "publish" the statement.
• 3. Damages, Maybe

“Defamatory”=tends to adversely affect the P’s reputation (reputation in sense of ability to earn a living; not mere social reputation).

Mere name-calling (i.e. P is a bastard) generally not defamatory bc does not tend to affect P’s reputation. Doesn’t actually give the listener any reason to doubt P’s reputation.

• Generally want to look for an allegation or representation of fact.
• The big ones: money (stealing, embezzling, cheating on taxes); lack of peaceableness (he killed a man in Reno); impugning P’s loyalty (he’s selling secrets to Iran; he’s not faithful to his church); impugning morality (sexual morality; modesty).

• Statements of opinion. They can be
• defamatory if a reasonable listener would assume factual basis.

Specific identification of P can be by name, but not necessarily (i.e. can identify by job title, etc).

P must be alive at time statement is made.

Publish only=D sharing statement with at least one person other than the P himself.

Of course, the wider the publication, the higher the harm, and the more you’ll be able to recover.

Can be satisfied by negligent publication, not just intentional (misaddressing email; negligently allowing yourself to be overheard).

• Libel
• Defamation embodied in a permanent format (i.e. written down; printed; stored on hard drive; on film; etc).

• P need not show damages…
• Unless statement is,
• -Not within a per se category, and
• -Not facially defamatory (i.e. defamatory impact not clear from face of statement).

• Slander
• An oral defamatory statement.

Two subtypes:

• Slander per se. Considered so bad that, like libel, P need not demonstrate damages. These are statements:
• --that relate to P’s business or profession;
• --that P has committed a crime of moral turpitude;
• --that impute unchastity to a woman (and only a woman);
• --that P has a loathesome disease (only leprosy and VD);
• --that impute homosexuality.

• Slander not per se. Must prove damages (lost job, revenues are down; not enough to show hurt feelings or impact on social life).

• Consent
• Truth
• Privilege (Absolute and Qualified)

See Consent under affirmative defenses to intentional torts.

Absolute defense.

D bears burden of proof.

Absolute Privilege

• Arises by function of identity of D:
• --spouses talking to each other (H>W, even if overheard)
• --govt officers engaged in conduct of official duties (most relevant to judicial branch (includes judge, lawyers, witnesses)).

• Qualified Privilege
• Arises based on when the speech is made, rather than who made the speech.

• At most general level, arises when strong social interest in encouraging candor. Includes…
• --Recommendations and references,
• --Statements made to the police.

But, reasonable belief requirement. Privilege requires that D had reasonable belief that what he is saying is accurate (and note, by definition, if you’re at qualified privilege, the statement is not truthful). Not a license to spread deliberately hurtful lies.

Analysis where D’s speech relates to a matter of public concern (subject of ongoing political or public debate) (calling BP executives negligent for Gulf spill).

Adds two elements to P’s case:

4. Must prove the falsity of the statement.

• 5. Must prove some degree/fault on part of D.
• For public figures=intent (knowingly false statement) or recklessness (did not investigate truthfulness).

For private figures=negligence (lack of reasonable care WRT investigation of truthfulness).