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To: Scott Kleinhans who wrote (2454)12/15/1998 12:10:00 AM
From: David Gardiner   of 2843
 
After the hubbub last week and everyone calling for a lawsuit I
thought atleast 1 person might be interested in seeing a breakdown on
how defamation and slander work.

Disclaimer: The following does not represent legal advice. It is only
from my torts II outline from last spring. (I wrote this part during
spring break by the pool so there might be a hole or two in it) If you
wish for real legal advice call the guy on the back of the phone book
or contact me in a year and a half.

Dave

DEFAMATION
8. Definition
a. Injury to the P.'s reputation.
9. Prima Facie Case at common law.
a. Defamatory statement about this P.
i. To be defamatory a statement must contain a defamatory assertion of fact.
ii. Mere name calling is not enough.
(1) Must be defamatory on its face
(a) If a statement is not defamatory on its face a P. must prove extrinsic facts (inducement) and establish the defamatory meaning from them by innuendo.
(b) Generally must hold P. up to hatred, ridicule or contempt.
(2) Must refer to P. directly
(a) If the P. is not clearly referred to on the face of the statement P. must establish colloquium to show they were the one referred to.
b. Publication
i. Must have communication to a 3rd person.
(1) Words uttered only to P. are not actionable.
ii. Person on the receiving end must be capable of understanding the comment.
(1) i.e. if something is said in Russian and no one understands this is not publication.
iii. Communication may be intentionally or negligently made.
(1) Intent - come up and tell something to someone.
(2) Negligence – say something defamatory and loudly to P. so that it is foreseeable other people would overhear and your reputation would be injured.
c. Injury to P.'s reputation
i. Injury is presumed for every libel and slander per se.
(1) Libel consists of the written word.
(2) Slander is the spoken word
(a) Categories of slander per se.
(i) Business or professions
(ii) Crime involving moral turpitude
(iii) Loathsome disease
1) Leprosy or venereal disease
(iv) Imputing unchastety to a women.
(b) Only time injury is not presumed if there is a slander and it does not fit into one of the slander per se categories.
(i) Money damages must be shown for slanders that are not per se.
1) These are special damages.
a) Ex. Because of statement you lost your job.
10. Defenses
a. Consent
i. Communication is with consent of P.
ii. D. is free to publish a defamatory statement about the P if the latter has consented to it.
b. Truth
i. Truth is a complete defense.
c. Absolute and qualified privileges.
i. Absolute privilege
(1) Communications between spouses.
(a) When talking to one another.
(b) Not when they are talking about one another.
(2) Governmental immunity
(a) Free expression and full disclosure of info is so essential to the proper functioning of the govt. process that it outweighs any private interest in reputation.
(i) Executive and legislative branch.
1) Privilege attaches so long as the statement is made within the scope of the official's duty.
(ii) Privileged to say anything during court proceedings.
1) I.e. depositions and on witness stand.
2) Even if something said is hateful.
ii. Almost all privileges are qualified.
(1) General standard
(a) Is statement something that society wants to encourage people to make.
(2) Protection of private interests.
(a) A D. Is conditionally privileged to defame another, if there is:
(i) Protectable interest; and
1) D. must have a reasonable belief that some important interest in person or property is threatened.
2) It can be his own interest, that of the person to whom he publishes the defamation, or that of some 3rd party.
(ii) Relevancy; and
1) The defamation published must bear some reasonable relevancy to the interest sought to be protected.
(iii) Purpose to protect.
(iv) D. must have published the defamation in the reasonable belief that the person to whom it was published was in a position to protect or assist in the lawful protection of that interest.
(3) Protection of public interest
(a) A person is conditionally privileged to defame another if he reasonably believes his utterances are necessary to protect a legitimate public interest; and
(b) that the person to whom the statement is made is empowered to protect that interest.
(4) Conditional privilege may be lost through bad faith or abuse.
(a) If something is being said defamatory and they are intentionally lying about it then that is an abuse of their qualified privilege.
(b) Privilege will be defeated only if the D. is guilty of actual malice.
(i) This consists of ill will toward the P. or reckless indifference to the P.'s rights.
(c) Privilege is also abused if the D. does not believe in the truth of the defamatory matter, or even if believing it, does not have reasonable grounds for the belief.
(d) Privilege also may be lost through excess publication.
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