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Start →II. HARM TO ECONOMIC AND DIGNITARY INTERESTS In contract a) to the intentional torts, the tors a) in this section 1) involve less tangible harms a) to a person’s relational interests i) with other persons (a0 in society. Depending on the tort involved, the level a) of fault b) required for the prima facie case 1) may range a) from intent b) to strict liability. A. DEFAMATION 1. Prima Facie Case To establish a prim facie case for defamation, the following elements must be proved: i) Defamatory language on the parti of the defendant; ii) The defamatory language must be “of or concerning” the plaintiff –i.e., it must identify the plaintiff to a reasonable reader, listener, or viewer; iii) Publication of the defamatory language by the defendant to a third person; and iv) Damage to the reputation of the plaintiff. Where the defamation a) refers to a public figure or b) involves a matter of public concern, 1) two additional elements must be proved a) as part of the prima facie case: (v) Falsity of the defamatory language; and (vi) Fault on defendant's part. 2. Defamatory Language Defamatory language is language that tends to adversely affect one’s reputation. This may result from impeaching the individual’s honesty, integrity, virtue, sanity, or the like. a. Inducement and Innuendo If the statement standing alone is defamatory, it is defamatory "on its face." However, a statement is also actionable if the defamatory meaning becomes apparent only by adding extrinsic facts. The plaintiff pleads and proves such additional facts as inducement and establishes the defamatory meaning b innuendo. Inducement and innuendo identify to the courts and the parties that extrinsic facts are being introduced to the court by the plaintiff to establish the first eleme 1 t of a prima facie case. Example: Defendant publishes an erroneous report that Plaintiff has given birth to twins. This is defamatory because Plaintiff pleads and establishes that she had been married only one month. b. Mothods of Defamation Not all defamation consists of direct remarks. Pictures, satire, drama, etc., may convey an actionable defamatory meaning. c. Statement of Opinion While a statement of fact may always be defamatory, a statement of opinion is actionalble only if it appears to be based on specific facts, and an express allegation of thos facts would be defamatory. Example: The statement “I don’t think Robert can be trusted with a key to the cash register” implies personal knowledge of dishonest conduct by Robert, and thus may be actionable. 1) Distinguish Fact and Opinion Whether a published statement is one of fact or opinion depends on the circumstances surrounding the publication and the nature of the words used. Generally, the broader the language used, the less likely that it will be reasonably imterpreted as an statement of fact or an opinion based on specific facts. d. Who May Be Defamed? 1) Individual Any living person may be defamed. Defamation of a deceased person is not actionable. 2) Corporation, Unincorporated Association, and Partnership In a limited sense, a corporation, unincorporated association, or partnership may also be defamed, e.g., by remarks as to its finantial condition, honesty, integrity, etc. 3. Of or Concerning the Plaintiff The plaintiff must establish that a reasonable reader, listener, or viewer would understand that the defamatory statement referred to the plaintiff. a. Colloquium A statement may be actionable even though no olear reference to the plaintiff is contained on the face of the statement. In such a case, however, the plaintiff is required to introduce additional extrinsic facts that would lead a reasonable reader, listener, or viewer to perceive the defamatory statement as referring to the plaintiff. Pleading and proving such extrinsic facts to show that the plaintiff was, in fact, intended is called "colloquium." b. Group Defamation A significant issue is presented in respect to this prima facie case element when the defamatory language refers to a group without ibentifying any particular individual within that group. In such cases, the following rules operate: 1) All Members of Small Group Where the defamatory language refers to all memberso of a small group, each member may establish that the defamatory statement was made of and concerning him by alleging that he is a member of the group. 2) All Membersof Large Group If, however, the defamatory refers to all members of a large group, no member of that group may establish this element of the cause of action. 3) Some Members of Small Group Where the defamatory language refers to some members of a small group, plaintiff can recover if a reasonable person would view the statement as referring to the plaintiff. 4. Publication A statement is not actionable 1) until there has been a "Publication." The publication requirement is satisfied 1) when there is a communication to a third person who undersstood it. Example: Libby saw a defamatory statement about Jeffrey printed in Russian. The publication requirement is not met unless it is shown that Libby understood the foreign words. The communication to the third party may be made either intentionally or negligently. a. Only Intent to Publish Required Once publication is established, 1) it is no defense that a) defendant had no idea that i) she was defaming plaintiff b) because she neither i) knew nor ii) had reason to know that (a) plaintiff existed (i) (use of (A) fictional name), nor iii) knew that (a) the publication was defamatory. It is a) the intent i) to publish, b) not the intent i) to defame, 1) that is the requisite intent. Example: Defendant published a false statement a) that Plaintiff had given birth i) to twins. If Defendant neither a) knew nor b) had reason to know that i) Plaintiff had been married (a) only one month, 1) Defendant is a) nonetheless b) liable. b. Repetition Each repetition a) of the defamatory statement 1) is a separate publication a) for which the plaintiff may recover damages. c. Single Publication Rule –Statute of Limitations However, as to publication a) of a defamatory statement b) in a number of i) copies of i) the same (a) newspaper, (b) magazine, or (c) book, 1) most American courts have adopted the single publication rule. Under this rule, all copies a) of a i) newspaer, ii) magazine, or iii) book edition 1) are treated as a) only one publication. The publication is deemed a) to occur 1) when the finished product is released a) by the publisher b) for sale 2) (a matter a) which is, i) obviously, ii) most important for (a) the running of the statute of limitation). Damages are a) still b) calculated i) on the total effect of the story (a) on all of the readers. d. Who May Be Liable? 1) Primary Publisher Each individual a) who takes part in i) making the publication 1) is charged with the publication a) as a primary publisher; 2) e.g., a) a newspaper or b) TV station i) carrying a .defamatory message would be viewed i) as a primary publisher and held responsible for i) that message (a) to the same extent as (i) the author or (ii) speaker. 2) Republisher A republisher a) (i.e., one i) who repeats a defarnatory statement) 1) will be held liable a) on the same general basis i) as a primary publisher. This is so 1) even if the repeater a) states the source or b) makes it clear that i) she does not believe the defamation. Note: Where there has been a republication, 1) the original defamer's liability may be increased a) to encompass any new harm i) caused by the repetition 2) if the republication was either (i) intended i) by the original defamer or (ii) reasonably foreseeable to her. 3) Secondary Publisher One a) who is responsible only i) for disseminating materials i) that might contain defamatory matter b) (e.g., i) a vendor of newspapers, ii) a player of a tape) 1) is viewed as a secondary publisher. Such individuals are liable 1) only if they a) know or b) should know of i) the defamatory content. 5. Damage to Plaintiff's Reputation In ascertaining a) whether this element i) of the plaintiff's prima facie case has been satisfied, 1) it may be necessary a) to distinguish between i) libel and ii) slander. As will be seen below, the burden of proof a) as to damages i) to plaintiff's reputation 1) may depend on this distinction. a. General or Special Damages 1) General or presumed Damages Genenal damages a) are presumed i) by law and b) need not be proved i) by the plaintiff. They are intended a) to compensate the plaintiff i) for the general injury (a) to her reputation (i) caused by the defamation. Note: Constitutional a) free speech and b) press i) considerations 1) may restrict an award a) of presumed damages 2) when the defamation involves matters of a) "public concern." [Dun & Bradstreet, Inc. v. Greenmoss Bui ders, Inc., 472 U.S. 749 (1985)] (See 7.d.3), infra.) 2) Special Damages Special damages a) in a defamation law context 1) means that a) the plaintiff must i) specifically ii) prove that (a) she suffered pecuniary loss (a) as a result of the defamatory statement’s effect (i) on her reputation, and 2) are not proved merely a) by evidence of actual injury i) i.e., such as (a) the loss of friends, (b) humiliation, or (c) wounded feelings. The loss of (pecuniary interest) a) a job, b) a prospective i) gift or ii) inheritance, c) an advantegeous relationship, or d) custormers 1) are pecuniary losses a) such as those i) contemplated by the special damages. b. Libel a) Definition Libel is a defamatory statement a) recorded in i) writing or ii) some other permanent form. A libel may also be recorded by a) radio or b) television i) in some circumstances. (see below) 2) Damages Rules for Libel a) General Damages Presumed In most Jurisdictions, general damages are presumed a) by law b) for all libels; 1) i.e., special damages need not be established. b) Libel Distinction-Minority Position A substantial minority of courts distinguish between a) libel per se and b) libel per quod i) in determining (a) whether a libel is actionable (i) without proof of special damages. Per Quod [Latin, Whereby.] With respect to a complaint in a civil action, a phrase that prefaces the recital of the consequences of certain acts as a ground of special harm to the plaintiff. At Common Law, this term acquired two meanings in the law of Defamation: with respect to slander, it signified that proof of special damages was required; in regard to libel, it meant that proof of extrinsic circumstances was required. Words that are actionable per quod do not furnish a basis for a lawsuit upon their face but are only litigable because of extrinsic facts showing the circumstances under which they were uttered or the damages ensuing to the defamed party therefrom. PER QUOD, pleading. By which; whereby. 2. When the plaintiff sues for an injury to his relative rights, as for beating his wife, his child,, or his servant, it is usual to lay the injury with a per quod. In such case, after complaining of the injury, say to the wife, the declaration proceeds, "insomuch that the said E F, (the wife,) by means of the premises, then and there became and was sick, sore, lame, and disordered, and so remained and continued for a long space of time, to wit, hitherto, whereby he, the said A B, (the plaintiff,) lost", &c. 2 Chit. Pl. 422; 3 Bl. Com. 140. It seems that the per quod is not traversable. 1 Saund. 298; 1 Ld. Raym. 410; 2 Keb. 607; 1 Saund. 23, note 5. (1) Libel per se –Presumed damages These courts take the position that a) injury i) to the reputation of the plaintiff 1) is presumed a) by law 2) only if the statement is a) libelous and b) defamatory i) on its face (libel per se). (i.e., without extrinsic evidence) Thus, such libels are actionable a) without i) pleading or ii) proving (a) special damages. libel (ˈlaɪbəl) n 1. (Law) law a. the publication of defamatory matter in permanent form, as by a written or printed statement, picture, etc b. the act of publishing such matter 2. any defamatory or unflattering representation or statement 3. (Law) ecclesiastical law a claimant's written statement of claim 4. (Law) Scots law the formal statement of a charge vb (tr) , -bels, -belling or -belled, -bels, -beling or -beled 5. (Law) law to make or publish a defamatory statement or representation about (a person) 6. to misrepresent injuriously 7. (Law) ecclesiastical law to bring an action against (a person) in the ecclesiastical courts [C13 (in the sense: written statement), hence C14 legal sense: a plaintiff's statement, via Old French from Latin libellus a little book, from liber a book] (2) Libel Per Quod -Special Damages Usually Required The libelous statement a) that is not defamatory i) on its face, b) but that requires reference to i) extrinsic facts ii) to establish its defamatory content, 1) is characterized as libel per quod a) by these courts. These courts generally require special damages a) to be i) pleaded and ii) proved (a) for such libels. quod noun BRIT., SLANG prison; jail Origin of quod probably variant, variety of quad, contr. ; from quadrangle (of a prison) (countable) A quadrangle or court, as of a prison; a prison. (uncountable, Australia, slang) Confinement in a prison. Verb 1563, John Foxe, Actes and Monuments, 1868, The Church Historians of England: Reformation Period, Volume 8, Part 1, page 422, “Why," quod her friend, “would ye not willingly have gone with your company, if God should so have suffered it?" 1908, James Gairdner, Lollardy and the Reformation in England: An Historical Survey, 2010, Cambridge University Press, page 416, “And therefore I have granted to their request," quod the King; [...] . c. Slander 1) Definition Slander is spoken defamation. It is to be distinguished a) from libel b) in that the defamation is in i) less permanent and ii) less physical (a) form. slan·der (slăn′dər) n. 1. Law Oral communication of false and malicious statements that damage the reputation of another. 2. A false and malicious statement or report about someone. v. slan·dered, slan·der·ing, slan·ders v.tr. To utter a slander about. See Synonyms at malign. v.intr. To utter or spread slander. [Middle English slaundre, from Old French esclandre, alteration of escandle, from Latin scandalum, cause of offense, stumbling block; see scandal.] 1. (Law) law a. defamation in some transient form, as by spoken words, gestures, etc b. a slanderous statement, etc 2. any false or defamatory words spoken about a person; calumny vb 3. to utter or circulate slander (about) [C13: via Anglo-French from Old French escandle, from Late Latin scandalum a cause of offence; see scandal] a) Characterization of Repetitions Where the original defamation is libel, 1) any repetition, a) even if oral, b) is also libel. On the other hand, the written repetition a) of a slander 1) will be characterized a) as libel. b) Radio and Television Broadcasts Generally Libel Most courts today treat defamation a) in i) radio and ii) television (a) broadcasts b) as libel, 1) regardless of whether a) it was scripted. [See Restatement (Third) of Torts §568A] 2) Damages Rules for Slander a) Special Damages Usually Required In slander, injury a) to reputation 1) is not presumed . Thus, ordinary slander is not actionable a) in the absence of i) pleading and ii) proof (a) of special damages. re·sume (rĭ-zo͞om′) v. re·sumed, re·sum·ing, re·sumes v.tr. 1. To begin or take up again after interruption: resumed our dinner. 2. To assume, take, or occupy again: The dog resumed its post by the door. 3. To take on or take back again: resumed my original name. v.intr. To begin again or continue after interruption. [Middle English resumen, from Old French resumer, from Latin resūmere : re-, re- + sūmere, to take; see em- in Indo-European roots.] b) Slander Per Se – Injury Presumed If, however, the spoken defamation falls a) within one of four categories, i) characterized as slander per se, 1) an injury a) to reputation is presumed a) without proof of i) special damages. These categories are as follows: (1) Business or Professsion A defamatory statement a) adversely b) reflecting on plaintiff’s ability i) in his (a) business, (b) trade, or (c) profession 1) is actionable a) without i) pleading or ii) proof of (a) special damages. Statement a) that the plaintiff i) is dishonest or ii) lacks the basic skill (a) to perform his profession or (b) carry out his office 1) are examples of a) this slander per se category. The statement must, however, a) directly b) relate to plaintiff’s i) profession, ii) trade, or iii) business. Example: Statement a) about an engineer b) stating i) “he is a Communist” 1) is not a) directly b) related to his trade. (2) Loathsome Disease A defamatory statement a) that the plaintiff is i) presently ii) suffering from (a) a foul and (b) loathsome (i) disease 1) is actionable 2) without a) pleading or b) proof i) of special damages. Historically, this slander per se category has been limited to a) venereal disease and b) lepsosy. (3) Crime Involving Moral Turpitude A defamatory statement a) that the plaintiff i) is or ii) was (a) guilty of a crime (i) involving moral turpetude 1) is actionalble 2) without a) pleading or b) proof i) of special damages. Because common law crimes a) generally b) are deemed i) to involve moral turpetudes c) (e.g., a) assault, b) larceny, c) perjury), 1) this category a) of slander per se incorporates a large number of statements. Thus, the allegation that a) a married man has a mistress 1) implies that a) he is guilty of the crimes of i) fornication and ii) adultery. for·ni·ca·tion (fôr′nĭ-kā′shən) n. Sexual intercourse between people who are not married to each other, especially when considered as a sin. 1. voluntary sexual intercourse outside marriage 2. (Law) law voluntary sexual intercourse between two persons of the opposite sex, where one is or both are unmarried 3. (Bible) Bible sexual immorality in general, esp (4) Unchastity of a Woman A defamatory statement a) imputing unchaste behavior i) to a woman 1) is actionable a) without i) pleading or ii) proof (a) of special damages. d. Per Se Per Se a) means defamatory i) on its face ii) when used (a) in libel actions and b) means slander i) within one of the four categories ii) when used (a) in slander actions. 6. Falsity At common law, a defamatory statement was presumed a) to be false. The Supreme Court, however, has rejected this presumption a) in all cases i) in which the plaintiff is (a) constitutionally (b) required to prove (i) some type of fault (see below). In these cases, the plaintiff must prove a) as an element of the prima facie case b) that the statement was false. [ Philadelphia Newspapers, Inc. v. Hepp, 475 U.S. 767 (1986)] a. Exam Approach Even where the statement is true, it may a) nonetheless b) give rise to liability 1) if it is uttered a) under circumstances i) sufficient to constitute (a) intentional infliction of severe emotional distress (IIED) or (b) invasion of the right to privacy; Hence, consider these torts as well 1) when your exam question presents a) potentially b) defamatory statements. However, where plaintiff is a public figure a) who would be barred i) on First Amendment grounds ii) from recovering for defamation, 1) he will not be allowed a) to rely on these other tort theories. [Hustler Magazine, Inc. v. Falwell, 485 U.S. 46 (1988)] I 7. Fault on Defendant’s Part Although a) at common law b) defamation liability could be strict, 1) a number of Supreme Court decisions a) based on the First Amendment now impose a fault requirement a) in cases i) involving (a) public figures or (b) matters of public concern. The degree a) of fault i) to be established 1) depends on the type a) of plaintiff, 2) i.e., whether he is a) a public official or b) public figure i) as compared with (a) a private person (i) involved (A) in a matter of public concerm a. Public Officials –Malice Required A public official may not recover a) for defamatory words i) relating to his official conduct 1) in the absence of a) “clear and convincing ” proof i) that the statement was made (a) with “malice”. (see below). [New York Times v. Sullian, 376 U.S. 254(1964)] b. Public Figure –Malice Required The rule a) of New York Times v. Sullivan 1) has been extended a) to cover litigation 2) where the plaintiff is a public figure. [Associated Press v. Walker, 388 U.S. 130 (1967); Curtis Publishing Co. v. Butts, 388 U.S. 130 (1967)] 1) What Constitutes a Public Figure? A person may be deemed a "public figure’ a) on one of i) two grounds: (i) where he has achieved (a) such (i) pervasive fame or (ii) notoriety (b) that he becomes a public figure (i) for all (A) purposes and (B) contexts (c) (e.g., celebrity sports figure); or (ii) where he (a) voluntarily (b) assumes a central role (i) in a particular public controversy (ii) (e.g., prominent community activist) and (c) thereby becomes a "public figure“ (i) for that limited range of issues. [Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974)] In Gertz, the Court a) indicated that i) it might be possible (a) for a person to become a public figure (i) through no purposeful action of his own, b) but considered such instances i) to be "exceedingly rare." Subsequent cases support this interpretation. [Time, Inc. v. Firestone, 424 U.S. 448 (1976); Hutchinson v. Proxmire, 443 U.S. 111 (1979); Walston v. Reader's Digest Association, 443 U.S. 157 (1979)] c. What Is Malice 1) Test Malice was defined a) by the Supreme Court i) in New York Times . Sullivan b) as: i) Knowledge (a) that the statement was false, or ii) Reckless disregard (a) as to its truth or falsity. 2) What Constitutes "Knowledge or Reckless Falsity"? It must be shown that a) the defendant was i) subjectively ii) aware (a) that the statement (i) he published was false or b that he was i) subjectively ii) reckless (a) in making the statement. [New York Times v. Sullivan, supra] a) Reckless Conduct -Subjective Standard "Reckless" conduct is not measured a) by a reasonable person standard or b) by whether a reasonable person would have investigated i) before publishing. There must be a showing that a) the defendant i) in fact ii) (subjectively) iii) entertained serious doubts (a) as to the truthfulness of his publication. b) Spite, etc., Not Enough It is not enough that a) the defendant is shown i) to have acted with (a) spite, (b) hatred, (c) ill will, or (d) intent (i) to injure the plaintiff. 3) Alteration of Quotation as Malice A journalist a) deliberately b) altering a quotation i) attributed to a public figure 1) can be found to have "knowledge of falsity" 2) if it can be established that a) the alteration results in a material change i) in the meaning (a) conveyed by the statement. [Masson v. New Yorker Magazine, 501 U.S. 496 (1991)] d. Private Person Need Not Prove Malice Where the defamatory statement relates to a) a nonpublic personage, 1) there is less concern a) for freedom of i) speech and ii) press. In addition, private individuals are more vulnerable a) to injury i) from defamation 1) because they a) usually b) do not have i) as effective opportunities i) for rebuttal ii) as public personages. Accordingly, defamation actions a) brought by private individuals 1) are subject to constitutional limitations 2) only when the defamatory statement involves a matter a) of "public concern." And even in those cases, the limitations are not as great as a) those i) established for (a) public officials and (b) public figures. [Gertz v. Robert Welch, Inc., supra] 1) Matters of Public Concern –At Least Neglignece Requied When the defamatory statement involves a matter of public concern, 1) Gertz impos ← End
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