Defamation

From Media & Entertainment Law Wypadkis

Defamation- is the communication of a statement that makes a false claim, expressively stated or implied to be factual, that may harm the reputation of an individual, business, product, group, government or nation. A communication is defamatory if it tends so to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him. Clark. Libel- Defamation by written or printed words. Libel has been considered the more damaging form of defamation because printed defamation generally has greater permanency and reaches more people than oral defamation. Elements- 1) defamatory words (what words specifically?); 2) publication (All it takes is one other person other than the D & P to have read it. D must have intended to pub. it.) 3) inducement (what is the context?); 4) colloquium (how does it relate to P?); 5) innuendo (How it did in fact defame P. Is he a person to be avoided (maybe out of pity?), shunned & distrusted Belli.) Slander- Spoken defamation. Ps have to prove more to win a slander case, they have to prove not just general harm to one’s reputation, but special damages. Elements- 1) defamatory words; 2) publication (another person heard it); 3)Inducement (trying to persuade something of something); 4)Colloquium (statements or proof of defamation); 5)Innuendo (suggesting something); 6) Special Damages (pecuniary loss or acute mental or serious physical illness). Slander Per Se- When you falsely accuse someone of 1) a criminal offense; 2) a loathsome disease; 3) A matter incomparable with the proper exercise of the P’s business, trade, profession or office or 4) Sexual misconduct. The cases are clear that reckless conduct is not measured by whether a reasonably prudent man would have investigated before publishing. Opinion- There can be no libel predicated on an opinion. The publication must contain a false statement of fact. However, where the alleged defamatory remarks could be determined either as fact or opinion, and the court cannot say as a matter of law that the statements were not understood as fact, there is a triable issue of fact for the jury. Bindrim. Public people- There are two types of public figures. 1) Persons of persuasive fame or notoriety, such as celebrity sports figures, and 2) Persons who voluntarily inject themselves into a particular public controversy and become public figures for that limited range of issues (A) a "public controversy" must exist. (B) the nature and extent of the individual's participation in the particular controversy must be ascertained.) Malice required (Sullivan Standard)- There must be sufficient evidence to permit the conclusion that the D in fact entertained serious doubts as to the truth of his publication. Focus on D's attitude toward the truth or falsity of the material published Bindrim. If the movie makers say that it is based on a true story and that some of the characters are still alive, then they have to know something is true or false and will be defamed if they show something false. HMP- 1; T/F- F; Highly Offensive- N; Intent- Negligence standard; Post-Mortem- N; False assertion of fact. Defenses- 1) Truth- The D has the burden of proof unless it is a matter of public interest or public concern. Reason- Truth is an absolute privilege because society values truth more than it values protection of people’s reputations. 2) Libel Proof- Only rare situations where someone may have such a bad reputation as to be libel proof such as Dr. Kevorkian. 3) Non-Actionable Opinion- Courts weigh several factors including A) the content of the alleged defamatory statement, B) whether the statement is provable as false, C) the precision and specificity of the language used, D) the use of cautionary language or words of apparency, E) the verifiability of the statement, F) the context in which the statement is made, G) its intended audience and H) the medium in which it is communicated. 4) Demand for Retraction- This is an imperfect defense, but in some states a P’s permissible recovery in a defamation action may be limited if the P fails to demand a retraction in a timely manner or if a D does make a retraction upon the demand of the P. 5) Husband and Wife Privilege- Reason- This policy encourages candid conversations between spouses. But the privilege does not extend beyond the marriage. So if your spouse the next day communicates the disparaging remark to a friend, that statement would not be privileged. 5) Fair comment and criticism- This privilege applies to communications about a newsworthy person or event. Conditional privileges may be lost through bad faith or abuse.

Steps to Protect from Charges of Defamation- 1) Change the names and circumstances so that the people depicted are no identifiable; 2) Obtaining a depiction release from those persons portrayed, or 3) Exercising any potentially defamatory material.

• Elements
  • Plaintiff must be a living person or a company
  • Defamatory statement
    • Communication is defamatory if it has tendency to harm reputation of another, to lower his standing in the community or to defer others from association with that person
  • Colloquium – statement has to be “of and concerning” the plaintiff
  • Publication - intentional or negligent
  • Injury
• Defenses
  • Truth
  • Opinion
  • Public Officials and Figures can prevail in a defamation action only if they prove by clear and convincing evidence that defendant acted with actual malice
    • Actual Malice - knowledge of falsity of reckless disregard for the truth. This protects the defendant's 1st Amendment Rights
  • Privileges
    • Absolute Privilege
      • Judicial Proceedings
      • Legislative proceedings
      • Government Officials acting within the scope of their duty
      • Husband and Wife
      • Consent
    • Conditional or Qualified Privilege - applicable only where defendant acts for certain well defined purposes and the privilege will be lost if the defendant acts out of malice or other motive not within the privilege