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Law of Torts Defamation)

Law of Torts Defamation)

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Published by Mohammad Idrees

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Categories:Types, Business/Law
Published by: Mohammad Idrees on Jan 23, 2011
Copyright:Attribution Non-commercial


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Defamation is an invasion of the interest in reputation of a person or a group of persons resultingfrom libel or slander. (Cal.Civ.Code § 44)Libel is a false and unprivileged publication by writing, printing, picture, effigy, or other fixedrepresentation to the eye, which exposes any person to hatred, contempt, ridicule, or disgrace, or which causes such party to be shunned or avoided, or which has a tendency to injure such partyin such party's occupation. (Cal.Civ.Code § 45)Slander is a false and unprivileged publication made orally either in person or by radio or television or by any other means which charges any person with crime, or with having beenindicted, convicted, or punished for crime, imputes to a party the present existence of aninfectious, contagious, or loathsome disease, tends directly to injure a party in respect to suchperson's office, profession, trade or business, either by imputing to such party generaldisqualification in those respects which the office or other occupation peculiarly requires, or byimputing something with reference to the office, profession, trade, or business that has a naturaltendency to lessen its profits, imputes to such person impotence or a want of chastity and bynatural consequence, causes actual damage. (Cal.Civ.Code § 46)
A written statement is defamatory on its face if the natural and probable effect on the averagereader is to defame the plaintiff without the necessity of considering the surroundingcircumstances. (Cal.Civ.Code § 45a)An oral statement is defamatory on its face if it charged plaintiff with a crime imputes in plaintiff the present existence of an infectious, contagious, or loathsome disease tends directly to injureplaintiff in respect to his her office, profession, trade or business, either by imputing to him her general disqualification in those respects which the office or other occupation peculiarly requires,or by imputing something with reference to his or her office, profession, trade or business that hasa natural tendency to lessen its profits imputes to him or her impotence or want of chastity.If a statement is not defamatory on its face, but nonetheless under all circumstances isdefamatory, plaintiff must establish that he or she has sustained special damages in order to alsorecover general damages.
A published opinion is not defamatory unless it conveys to the recipient a provably false assertionof a fact or facts. Whether such an interpretation was conveyed is a question of fact. If such aninterpretation was not conveyed, the expression or statement, though published, does notconstitute defamation.
The defamatory nature of a false and unprivileged publication must be determined by the naturaland probable effect of the publication on the mind of the average reader or listener.Consequently, if the average reader or listener would regard it as a defamatory publication it maybe libelous or slanderous on its face even though it is also susceptible of innocent meaning.
A "publication" of defamatory matter is its communication to a person other than the plaintiff, whounderstands its defamatory meaning and its application to the plaintiff. To be a publication, thecommunication also must be made intentionally or negligently.
A publication is intentional if made for the purpose of communicating the defamatory matter to aperson other than plaintiff, or with knowledge that the defamatory matter is substantially certain tobe so communicated. A publication is negligent if a reasonable person would recognize that anact creates an unreasonable risk that the defamatory matter will be communicated to a personother than plaintiff.
It is also essential to publication that the recipient of the defamatory communication understoodthe statement was intended to refer to the plaintiff. If the defendant intended to refer to theplaintiff, and the recipient so understood the statement, it is immaterial what words the defendantused to identify the plaintiff. If the recipient mistakenly, but reasonably, believed that thedefamatory statement was intended to refer to the plaintiff, it is immaterial that the defendant didnot intend to do so.
Multiple Publications
Each of several publications by the defendant to a third person is a separate publication for whichseparate damages can be awarded, except that a single communication heard at the same timeby two or more third persons is a single publication. Any one issue of a book newspaper, or radioor television broadcast, or exhibition of a motion picture or similar aggregate communication is asingle publication.Libel/Slander-Publication To Plaintiff A libelous or slanderous statement is not published within the meaning of the law if the author of the statement makes the statement only to the plaintiff.
The essential elements of a claim for defamation by libel slander are:1. The defendant by writing, printing or orally made a defamatory statement about the plaintiff;2. The defendant published the defamatory statement;3. The defendant:a. knew the statement was false and defamed plaintiff; or b. published the statement in reckless disregard of whether the matter was false and defamedplaintiff; or c. acted negligently in failing to learn whether the matter published was false and defamedplaintiff;4. Either the publication caused plaintiff to suffer special damages, or the statement wasdefamatory on its face. Reckless disregard for whether the matter was false and defamed plaintiff means that the defendant must have had serious doubts about the truthfulness of the statementat the time of the publication.A defendant acts negligently if he or she does not act reasonably in checking on the truth or falsity or defamatory character of the communication before publishing it.In determining whether the defendant's conduct was reasonable the trier of fact is to consider:1. The time element;2. The nature of the interest that the defendant was seeking to promote by publishing thecommunication; and3. The extent of the injury to the plaintiff's reputation or sensibility that would be produced if thecommunication proves to be false.
In order for a public official to recover damages for a defamatory falsehood relating to his officialconduct, he must prove that the statement was made with actual malice; that is, with knowledgethat it was false or with reckless disregard of whether or not it was false. (New York Times Co. v.Sullivan (1964) 376 U.S. 254 [11 L.Ed.2d 686, 84 S.Ct. 710, 95 A.L.R.2d 1412].)This rule has been extended to public figures, which are defined in Cepeda v. Cowles Magazinesand Broadcasting, Inc., (9th Cir. 1968) 392 F.2d 417, 419 (cert. den. 393 U.S. 840 [21 L.Ed.2d110, 89 S.Ct. 117]): "'Public figures' are those persons who, though not public officials, are
'involved in issues in which the public has a justified and important interest.' Such figures are, of course, numerous and include artists, athletes, business people, dilettantes, anyone who isfamous or infamous because of who he is or what he has done." (Montandon v. TrianglePublications, Inc. (1975) 45 Cal.App.3d 938)In Garrison v. Louisiana (1964) 379 U.S. 64, 74 [13 L.Ed.2d 125, 132-133, 85 S.Ct. 209], theSupreme Court further defined the New York Times meaning of actual malice by stating: "Andsince '... erroneous statement is inevitable in free debate, and ... it must be protected if thefreedoms of expression are to have the "breathing space" that they "need ... to survive" ...,'376U.S., at 271-272, only those false statements made with the high degree of awareness of their probable falsity demanded by New York Times may be the subject of either civil or criminalsanctions. . . The test which we laid down in New York Times is not keyed to ordinary care;defeasance of the privilege is conditioned, not on mere negligence, but on reckless disregard for the truth." (Garrison v. Louisiana, supra, p. 79 [13 L.Ed.2d p. 135].) "[R]eckless conduct is not measured by whether a reasonably prudent man would have published,or would have investigated before publishing. There must be sufficient evidence to permit theconclusion that the defendant in fact entertained serious doubts as to the truth of his publication.Publishing with such doubts shows reckless disregard for truth or falsity and demonstrates actualmalice." (St. Amant v. Thompson (1968) 390 U.S. 727, 731 [20 L.Ed.2d 262, 88 S.Ct. 1323] [20L.Ed.2d p. 267].)This requirement of actual malice was extended to libel actions brought by public figures and bypersons involved in matters of public interest or concern. (Curtis Publishing Co. v. Butts (1967)388 U.S. 130, 155 [18 L.Ed.2d 1094, 1111, 87 S.Ct. 1975] (rehg. den. 389 U.S. 889 [19 L.Ed.2d197, 88 S.Ct. 11]); Rosenbloom v. Metromedia (1971) 403 U.S. 29, 43-44 [29 L.Ed.2d 296, 311-312, 91 S.Ct. 1811]
Public Official/Figure--Public Matters-- Essential Elements
The essential elements of a claim made by a public official or public figure for defamation by libelor slander are:1. The defendant by writing, printing, orally either in person made a defamatory statement aboutthe plaintiff;2. The defendant published the defamatory statement;3. The defendant, at the time of the publication,a. knew that the statement was false and defamed plaintiff, or b. published the statement in reckless disregard of whether the matter was false and defamed theplaintiff;4. Either the publication caused plaintiff to suffer special damages, or the statement wasdefamatory on its face.Reckless disregard for whether the matter was false and defamed plaintiff means that thedefendant must have had serious doubts about the truthfulness of the statement at the time of publication.
An essential element of defamation by libel slander is that the statement published was false.Consequently, if the statement was, in fact true, there can be no defamation, regardless of defendant's motivation. Truth is an absolute defense to a claim of libel.
A conditional privilege is a defense to an action for defamation, unless the defendant abused theprivilege when publishing the statement.A privilege is abused when a defendant publishes a defamatory statement about plaintiff, withouta good faith belief in the truth of the statement; or without reasonable grounds for believing thestatement true; or motivated by hatred or ill will towards plaintiff. Plaintiff has the burden of proving by a preponderance of the evidence all of the facts necessary to establish that theprivilege was abused by defendant.

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