The tort of defamation can be rather confusing
on the UBE, not just in terms of its elements and/or the applicable defenses,
but more so because the MBE and MEE questions on defamation can be rather
confusing. In fact, defamation ranks as
one of the top two most difficult areas of tort law along with Products
Liability!
This blog post has been written to try and
clean up some of the confusion associated with this tort. For starters, let us begin with the three
elements of defamation:
1 – We need a defamatory stmnt made by the defendant that specifically identifies the plaintiff;
2 – We need a publication of that stmnt and;
3 – Resulting damage.
BAR EXAM NOTE – If the plaintiff is a PRIVATE PERSON? They must prove that the statement was made
with NEGLIGENCE. Conversely, if the plaintiff is a PUBLIC FIGURE? They
must prove that the statement was made with MALICE, aka maliciously.
“Actual malice” means
that a plaintiff must demonstrate that the publisher knew that the statement
was false or acted with reckless disregard to the truth of the statement. As such, one of the FIRST things to consider
is whether the plaintiff in your MBE question or MEE issue is a public figure
or private person. Think “PvP” for Private
vs. Public!
Unpacking Element #1 – What makes a statement defamatory?
The easiest way to make that determination is to note whether the
statement “tends to adversely affect reputation.” What would be a clearly defamatory statement? A statement of alleged fault that casts aspersions on a trait
of character. What would NOT be a clearly defamatory
statement? Mere name calling. For
example, John Smith is a SOB. This
would NOT be considered a defamatory statement.
In addition, a true subjective statement of opinion is
not defamatory. For example, a food critic who provides a scathing
review of a restaurant. That is
certainly a subjective statement!
However, a stmnt
of opinion that implies fact CAN be defamatory! How can we make this
determination?
1 - Determine if the statement has a precise meaning that is readily understood by readers,
2 – The statement must be susceptible to be proven true or false and,
3 – The statement must be one where context signals opinion and not fact.
For example, if the plaintiff can or can not be identified by name, job, education, etc. but you should know who it
is based on the characteristics
described? That would be readily
understood. Therefore, for a statement to be considered
defamation, it must be about the plaintiff. Even if the statement does not
mention him or her by name, it can be actionable on grounds of defamation if a
reasonable person would understand the communication as referring to the
plaintiff.
Also, if the statement refers to a GROUP, look to see if it is a large or a small group. If SMALL? All
can recover and if LARGE? None get to claim defamation
BAR EXAM NOTE – The person who is alleged to
have been defamed must be alive. Once they have died? No liability for anything and the/their estate can not bring a claim. This is a common MBE trick.
Unpacking Element #2 – Publication of the
Statement -
The statement need only be made to one person other than the plaintiff. The statement must be communicated
to a third-party. If the defendant communicated a harmful oral statement about
the plaintiff to his face with no one else present, or wrote a harmful
statement which was never distributed, there is no defamation.
BAR EXAM NOTE – If the statement was uttered ONLY to plaintiff in private? NO TORT as NOT to more than one other
than the plaintiff.
Unpacking Element #3 – Resulting Damage -
Sometimes, the damages are presumed and
other times they must be proven. We must
differentiate between libel, slander, and slander per-se.
LIBEL = a defamatory statement written down or captured in permanent format, for example a statement
that is taped, filmed, documented etc. With libel, damages are presumed, and this element drops out, leaving only the need to satisfy elements 1 and 2!
SLANDER = an oral or spoken defamatory statement. Note that slander per se is treated identically as libel with respect to the damage requirement. How can we tell whether a statement qualifies
as slander per se? There are four (4)
categories of slander per se, and they include:
1 – a defamatory statement related to one’s business or profession; 2 – a statement of crime of moral turpitude; 3 – a statement imputing unchastity to a woman and; 4 – a statement that plaintiff suffers from loathsome diseases (such as a venereal disease)
What about slander that does NOT fall into one of the aforementioned per se categories?
The plaintiff MUST prove dmgs! How
to do so? Actual damages are measured on the harm caused such as a lost business deal, or a lost
contract, or revenues are substantially down. It is therefore INSUFFICIENT to prove social or emotional harm, as those do not constitute damages. In most cases, actual harm is shown through economic loss
attributable to the impact of the slanderous statements on business reputation.
Courts have also allowed harm to be demonstrated by negative personal
consequences of the statement. Examples of personal harm can be the loss
of friends or a marriage engagement broken off due to the statement.
In addition, do not forget about the defenses to
defamation! We should always consider these defenses to ensure that none apply
to a particular MEE issue or MBE question.
You can search this blog for a separate post on the specific defenses to
defamation.
Conclusion
It is extremely important to understand the difference between the slander, slander per se, and libel. Success on the likely 2-4 MBE questions in this area of law, and perhaps success on a MEE issue depends on your knowledge of the law. For more information concerning this section of Tort law, another area of Tort law, or a different legal topic tested on the UBE, please do not hesitate to contact us at PassYourBarExam@gmail.com
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