Defamation: Common Law Elements

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DefamationCommon Law Elements

• Chapter 3

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Elements of a Libel Suit

• Defamation

• Identification

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Elements of a Libel Suit

• Publication

• Fault

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DEFAMATION

• Libel per se
• Libel per quod
• Implied Libel

• A significant number of right minded audience
  members have to believe the slur

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DEFAMATION

• Libel-proof plaintiffs

• Look at words natural meaning

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DEFAMATION

• Headlines may be libelous

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Defamation of Groups, Corporations, Products

• Businesses often sue for libel when accused of
  dishonest practices, or insolvency

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Defamation of Groups, Corporations, Products

• Trade libel or product disparagement
• Falsely criticizing a product line

• No criticism of manufacturers motives

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Types of Damage Awards
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Compensatory Damages

• Designed to make the plaintiff whole
• Presumed no real proof of harm needed harm is
  in the words themselves
• Actual plaintiff must make some showing of harm
• Special plaintiff must prove very specific loss
  e.g., firing from a job

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Punitive DamagesTo punish and deter
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PUBLICATION

• Only one THIRD PARTY must hear

• Self Publication

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PUBLICATION

• Publication VS Defamation
• Reputation must be diminished in MANY minds

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PUBLICATION, continued

• Republications are actionable too, with
  exceptions
• Wire services, bookstores, some internet service
  providers
• Neutral Reportage and FAIR REPORT defenses

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IDENTIFICATION

• Not always by name
• Even fiction can identify
• No libel against very large groups (e.g.,
  politicians)
• Case law is mixed concerning smaller groups

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FAULT

• U. S. libel law used to embrace strict
  liability
• no finding of negligence required
• if a damaged reputation resulted from a
  publication, there was liability
• New York Times v. Sullivan changed that

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Some Traditional Libel Defenses

• Statute of limitations

• Truth

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Some Traditional Libel Defenses

• Consent

• Fair Comment