CHAPTER 13 Defamation and Related Torts OVERVIEW QUESTIONS 1. What is the definition of defamation? a. Why is defamation a complex tort? b. What are the key features that shape defamation law today? c. Are defamation cases easily won? 2. What is the difference between libel and slander? a. Is the distinction between the two always clear? 3. Define “special harm.” a. When must special harm be proved? 4. What are the four exceptions to the special harm requirement for slander? a. b. c. d. 5. What are presumed damages? a. Why is it advantageous to a plaintiff when damages are presumed? b. In cases involving matters of public concern, what must a plaintiff prove before she or he can be awarded presumed damages? 6. What must a plaintiff who is alleging defamation prove? a. b. c. 7. Must the plaintiff’s reputation actually be harmed? a. Must everyone who hears the defamatory statement believe it to be true? b. Must the plaintiff’s reputation be soiled in the eyes of the whole community? c. Must the plaintiff show that the defendant referred to him by name? d. Can the plaintiff recover if the defendant makes a defamatory statement in reference to a group of which the plaintiff is a member? 8. Must a statement be subject to only a defamatory interpretation if the plaintiff is to recover? 9. What is “innuendo”? a. Give an example of a situation in which a plaintiff would be required to show the innuendo in a complaint. 10. Can a plaintiff recover if a defendant’s statement is substantially true? 11. Who has the burden of proving that a statement is true or false? 12. Can someone who is deceased be defamed? a. Can a corporation, partnership, or association be defamed? 13. Can a statement that is clearly an opinion be defamatory? a. What if the statement implies factual matters? © 2009 Delmar, Cengage Learning. All Rights Reserved 35 36, Chapter 13 14. What does a court look at in determining whether a statement is fact or opinion? a. b. c. d. 15. What is meant by the term “publication” in terms of defamation? a. Must publication be intentional? b. Is a statement published if it is simply overheard by someone? c. Must the person who hears the statement understand it? d. Is repetition considered publication? e. Must the person repeating the statement believe it to be true? f. What is the single publication rule? 16. What was the holding in New York Times v. Sullivan? a. How did the court define “actual malice”? b. What types of plaintiffs must prove actual malice? 17. How does one become a public figure? 18. Why does the court give less protection to public figures and public officials than to other types of plaintiffs? 19. Can a defendant ever be held strictly liable for a defamatory statement? 20. What can a successful plaintiff recover in a defamation case? a. Can punitive damages be awarded? b. When can presumed damages be awarded? c. Why might a plaintiff be willing to accept nominal damages? 21. What is a retraction statute? a. How does the Uniform Correction or Clarification of Defamation Act protect media defendants? (1) How does this Act protect plaintiffs? 22. What is the difference between an absolute privilege and a qualified privilege? 23. What types of people enjoy absolute immunity for statements made during the course and furtherance of their duties? a. b. c. d. e. 24. Are husband-wife communications absolutely privileged? 25. In what types of situations do people enjoy a qualified privilege? a. b. c. 26. Is making a statement for the purpose of gaining a competitive advantage privileged? 27. Is a defendant qualifiedly privileged if he is acting for the protection of the recipient of the information? 28. Can a qualified privilege be lost if it is abused? 29. How did the right to privacy evolve? 30. What four torts make up invasion of privacy? a. b. c. d. 31. What is the tort of appropriation? a. Give an example. 32. Define what is meant by “unreasonable intrusion.” a. Give an example. 33. How does one commit public disclosure of private facts? a. Give an example. b. Has a tort been committed if the details are published in a public report? © 2009 Delmar, Cengage Learning. All Rights Reserved Defamation and Related Torts, 37 34. What is the tort of false light? a. What is the difference between false light and defamation? 35. What is injurious falsehood? a. What are the two types of injurious falsehood? (1) (2) 36. What must a plaintiff who is alleging trade libel prove? a. How does the tort of trade libel compare to defamation? 37. Give an example of slander of title. REVIEW QUESTIONS 1. Why is it important to distinguish between libel and slander? 2. What must a plaintiff who is alleging defamation prove? Anticipate the potential problems that may arise with respect to each element of defamation. 3. In what respects is it easier for a private individual to recover for defamation than for a public figure? 4. Under what circumstances can an individual claim privilege as a response to a defamation claim? 5. What are the various ways a plaintiff might prove invasion of privacy and what are the differences among each of these torts? PUTTING IT INTO PRACTICE A public school teacher wants to sue the assistant principal for defamation. She claims that the principal prepared an evaluation after a classroom visitation and that the evaluation falsely represented what had occurred during his visit. As a result of this evaluation, the assistant principal recommended to the principal that the teacher be terminated. This recommendation was conveyed to the school board and she was terminated. She claims that the assistant principal also spoke to several of her peers about what he had observed in her classroom, and she maintains that what he represented to them was erroneous. Explain what she must prove if she is to bring a successful defamation claim. Advise her of the potential pitfalls if she were to attempt to bring suit. KEY TERMS Define the following: absolute privilege actual malice appropriation defamation false light injurious falsehood innuendo libel pecuniary presumed damages publication public figure qualified privilege slander slander of title slander per se special harm trade libel © 2009 Delmar, Cengage Learning. All Rights Reserved .