Tort Law on the MEE / UBE - Defamation - Slander Per Se vs. Non Per Se

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The Tort of Defamation - Slander Per Se vs. Non Per Se


One of the questions commonly raised by those that we prepare for the UBE exam is “how can/should we determine what constitutes slander per se as opposed to slander not per se, aka per quod?”  This is a legitimate question as we will see at least two to as many as four MBE questions on the tort of defamation and said tort could easily be an issue (or two issues!) in/on a torts essay.  Therefore, a breakdown of slander per se v. non per se is worth introducing. 

The tort of defamation refers to a false statement, either spoken ("slander") or written ("libel") that injures someone's reputation. However, some types of false statements are considered so damaging that they are deemed defamatory on their face ("defamation per se"). This is in contrast to "defamation per quod" where the false statement is not inherently defamatory and has to be evaluated in the context of additional facts.
Defamation Per Se and Untrue Statements
Traditionally, there have been four general categories of untrue statements presumed to be harmful to one's reputation and therefore actionable as an injury claim. Typically, if the statements don't fall into one of these categories, the plaintiff is required to prove their damages. If it does fall into one of these categories, damages are usually presumed and this element of a defamation claim drops out!  (See the image below concerning damages in libel and slander per se as opposed to slander per quod.)

There are four categories of common law that those types of statements fall into:

  1. The first is the imputation of criminal conduct. So, for example, if a party states that you have been convicted of a crime, they may be held liable for defamation per se.
  2. The second category is allegations injurious to another in their trade, business or profession. If someone tries to injure you in your profession, say, for example, they accuse you of medical malpractice when, in fact, you are not liable for medical malpractice, then those types of statements may rise to the level of defamation per se.
  3. The third category is the imputation of a lonesome disease. A lonesome disease typically is something like an STD, leprosy, or something along the lines of contagious, or very detrimental to the rest of society.
  4. The fourth and final category, is the imputation of unchastity in a woman. In common law, statements about the sexual unchastity of a woman were seen to be so harmful that they would constitute defamation per se.
Defamation Per Se: Damages
Depending on the circumstances of the case, the following damages may be awarded in these claims:
  • General damages: The compensation for the past and future harm sustained to reputation in the community as well as mental or emotional anguish and personal humiliation.
  • Special damages: The compensation for specific economic loss caused by the defamation. This can include things like loss of profits and loss of a job.
  • Nominal damages: A nominal sum that can be awarded when defamation per se has occurred but no serious harm to reputation was done.
  • Punitive or exemplary damages: Additional sums meant to punish or set an example when the defendant's actions were willful or malicious.
Truth Is an Absolute Defense to Defamation
It should be noted that truth is an absolute defense to defamation per se. This means that even if the statement would be considered defamatory per se if false, if the defendant establishes that it's in fact true, an action cannot survive.

Should you have any additional questions about defamation in general, slander per se vs. non per se, defenses to defamation or another area of the UBE, please do not hesitate to contact us at PassYourBarExam@gmail.com

GOOD LUCK!

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