Defamation

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Defamation

• Presented By
• Kevin K. Chase Joseph P. Menello

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History Lesson!

• Verbal defamation was treated as a criminal or
  quasi-criminal offense.
• The composition of scurrilous songs and gross
  noisy public affronts were punished by death.

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History Lesson!

• In later Roman law, verbal defamation was dealt
  with in two ways
• Statements made in a public manner - the truth
  of the statements was no justification for the
  unnecessarily public and insulting manner in
  which they had been made.
• Statements made in private - the offense lay in
  the imputation itself, not in the manner of its
  publication truth (or even belief in the truth)
  was defense, for no man had a right to demand
  legal protection for a false reputation.

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Elements

• Defamatory Language
• Of or concerning the plaintiff
• Must be a publication
• Must establish that there has been damage to the
  reputation of the plaintiff

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Statute of Limitations

• 2 Years From Publication

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What is Defamatory Language?

• Language that adversely affects someones
  reputation by impeaching the individuals
  honesty, integrity, virtue, or sanity.
• Who can be defamed?
• Individuals (only living people)
• Corporations or other business entities

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Fact v. Opinion

• Statements of fact can always be actionable
• Statements of opinion only actionable if they
  appear to be based on facts that are defamatory

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Of or Concerning the Plaintiff

• Plaintiff must prove that a reasonable person
  would have understood that the statement was
  about the plaintiff
• Can be proven by extrinsic facts called
  colloquium.

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Group Defamation

• Statement about all members of small group
• EACH member has case
• Statement about all members of large group
• NO member has case

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Publication

• Communication to a third party
• Third party understood the statement
• Can be intentional or negligent
• Only intent to publish is required
• Does not matter if publisher did not think
  statement was defamatory
• Each repetition of statement new publication

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Single Publication Rule

• All copies of same newspaper, magazine, book,
  etc. are treated as a single publication
• Publication deemed to occur when final product
  released for sale
• For SOL purposes

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Methods of Publication

• Times have certainly changed!
• The past - newspaper, magazine, radio, television
• The present email, blogs, webpages, instant
  messages
• The more methods of communication, the larger the
  audience, the bigger the potential for
  publication and damages

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Damages

• Typically, general damages to reputation not
  presumed, and must prove special damages
• General damages are presumed if defamation per se
  (four categories)
• Injury to business or profession
• Loathsome disease
• Crime involving moral turpitude
• Unchastity of a Woman

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Damage to Reputation

• General Damages vs. Special Damages
• General Damages
• Presumed by law if case elements proven
• Meant to compensate plaintiff for general injury
  to their reputation (embarrassment, hurt
  feelings, etc.)
• Special Damages
• Plaintiff must prove a pecuniary loss (lost job,
  lost customers, etc.)

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Libel vs. Slander

• Libel defamatory statement that is written down
  or recorded in some other permanent form
  (scripted material broadcast on a T.V. show)
• Slander typically defined as spoken defamation

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Defamation per se

• ONLY when considered alone and without innuendo
• Charge a person with an infamous crime, or tend
  to subject one to hatred, distress, ridicule,
  contempt or disgrace, or tend to injure ones
  business or profession
• Impute conduct, characteristics or a conditions
  which is not compatible with the proper exercise
  of ones lawful business, trade, profession or
  office

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Question of Law

• The determination of whether a statement is
  defamatory per se is a matter of law
• Not by extremes
• As the common mind would naturally understand
  them

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Malice Requirement

• Public Officials - must prove malice
• Public Figures - must prove malice

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What Constitutes Malice?

• Actual knowledge that statement false
• Reckless disregard as to statements truth or
  falsity
• Plaintiff must prove the defendant had serious
  doubts at to truthfulness of the publication.

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Private Individuals

• Do not need to prove malice
• Public Concern exception
• Private person must prove fault
• Presumed and punitive damages limited
• Damages limited to actual injury
• Presumed or punitive damages allowed if malice
  proven
• If matter of purely private concern, no
  Constitutional limitations at all

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Defenses to Defamation

• Consent
• Truth
• Absolute Privilege
• Judicial proceedings
• Legislative Proceedings
• Executive Proceedings
• Compelled Broadcast or Publication
• Spouse communications

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Substantial Truth Doctrine

• A statement does not have to be perfectly
  accurate if the gist or the sting of the
  statement is true.

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Different Effects Test

• Not considered false unless it would have a
  different effect on the mind of the reader from
  that which the pleaded truth would have produced.

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Qualified Privilege

• Reports of Public Proceedings
• Public Interest
• Interest of Publisher
• Interest of Recipient
• Common Interest of Publisher and Recipient

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Mitigating Factors

• No Actual Malice
• Retraction
• Anger

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False Light/Invasion of Privacy

• Must be highly offensive to a reasonable person
• Defendant must have acted either knowingly or in
  reckless disregard as to the falsity of the
  publicized material and the false light in which
  it would be placed
• Privacy right must be invaded
• Must be separate statement from defamation to
  state separate cause of action

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Sticks and Stones Example

• Customer in convenience store
• Buying lottery tickets
• Avid lottery player - 50 - 100 per day
• 1996 1998 played lottery once per day
• Went hog wild playing lottery beginning in 1996
• Well known to store

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Alleged Statements by Clerk

• I want to know where youre getting all this
  money to buy lottery tickets with everyday. You
  must have a business on the side.
• Plaintiff informed clerk of prior winnings
• Are you a professional gambler? You have to be
  a professional gambler to win this type of money.

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Allegations

• Customers in store understood the statements to
  mean Plaintiff was a drug dealer or was engaged
  in some illegal activity
• Damage to his reputation in the community and
  emotional distress

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Evaluation

• Are these defamatory statements?
• Defamation per se?
• Publication?
• Privileges?
• What are the damages?
• Summary Judgment?
• How would a jury react to statements?

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Evidence

• No proof of publication No witnesses who
  overheard statement
• No proof of damages No affect on his activities
• No malice
• Had to look beyond the statements - innuendo
• Defense verdict!

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Plaintiffs Statement to Judge at Hearing

• Judge, sticks and stones may break my bones, but
  names will never hurt me!
• (Isnt that the point?)

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It All May Be True, But . . .

• Bankruptcy case
• Court order against corporate defendant
• Referred to corporate defendant as Straub or
  Straub Entities
• Family (Straub) were shareholders
• Plaintiff (Straub) is CEO/President

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Allegations

• Press release on Order referred to corporate
  defendant as Straub
• CEO/President claims he was defamed because Order
  incorrectly referred to party as Straub when he
  was not a party
• Falsely found in contempt and ordered to pay fine

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Why Does He NOT Prevail?

• Substantially true taken as a whole
• He is President/CEO
• He and his family are the sole shareholders
• He exercised absolute control
• Was found in contempt and ordered to perform
  community service
• Judicial Proceeding Privilege
• No proof of actual or special damages
• Case Dismissed!

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Evaluation of Defamation Claims

• Is the statement actionable?
• Motion to Dismiss
• Motion for Summary Judgment
• Does a Privilege Apply?
• Are damages assumed? Per se?
• What are the damages?
• Reputation
• Business/Personal
• Are there mitigating factors?

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Avoiding Defamation Claims

• Think before you speak, write or type
• Understand your audience
• Consider the manner in which you communicate
• Control your emotions
• Apologize/Retract

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Thank you and please feel free to contact us with
any questions.