Common law defamation
Common law defamation occurs when a (1) false and defamatory statement (2) of or concerning the plaintiff (3) published to a third party (4) causing damage to the plaintiff's reputation.
- Defamatory statement
To be defamatory, the language used must diminish the respect, esteem, or goodwill towards plaintiff. Opinions are not defamatory unless they imply there is a factual basis for making the statement.
quote the language. (1) Why it is defamatory, and (2) if it is opinion, does it have defamatory nature 이 순서로 slow down and analyze!
- Of or Concerning Plaintiff
The plaintiff must be indentifiable to the extent that A reasonable person believes that the defamatory communication refers to this particular plaintiff.
- Publication to 3rd party
Publication must be intentionally or negligently made to a third party.
- Damage
Libel is written defamation. For libel, damages are presumed.
Slander is oral defamation. For slander, special damage (monetary loss) must be proven, unless the defamation is slander per se, meaning [BaD CaSe] (1) business unfitness, (2) a loathsome disease, (3) committed a crime, (4) sexual misconduct.
1st requirements
First Amendment protects freedom of expression.
- False
The plaintiff (public figure/official or private individual and statement involving a matter of public concern) must prove that the statement is false.
- Fault (Public figure): Actual Malice, Damage
Public figure is either (i) all-purpose public figure who has pervasive fame, OR (ii) limited purpose public figure who voluntarily inject themselves into a particular controversy for a limited range of issues.
If the plaintiff is public figure, plaintiff must show that (5) the defendant acted with actual malice, meaning that the defendant made defamatory statement with actual knowledge of its falsity OR with reckless disregard for the truth.
Damage is presumed, and punitive damages may be awarded.not true (disclose of criminal record does not amount to defamation, but disclosure of private act), in case of public figure, actual malice or reckless required (seriously doubtful but not investigate)
- Fault (Private figure, Public concern): Negligence, Damage
If the plaintiff is private figure but the statement is of public concern, the plaintiff must show that (5) the defendant acted with negligence.
Damage is not presumed and the plaintiff can only recover for actual damages. But if actual malice is proven, damages may be presumed, and punitive damages may be awarded.
Defense
Defenses to defamation include (1) consent, (2) truth, (3) absolute privilege and (4) qualified privilege.
- Consent and Truth
complete defenses to defamation.
- Absolute privilege
Absolute privilge protects statements made during judicial or legislative proceedings by government official or lawyer, and between spouses.
- Qualified privilege
Qualified privilege protects statements made to protect (1) publisher's interest, or (2) the reader or listener's interest, or (3) public interest. Qualified privilege may be lost if (1) outside the scope, or (2) actual malice is shownFair and accurate reports of public hearings/meetings, warning a prospective employer of D's employee's misconduct, recommendation, references, credit reports, conversations with the police.