COMMON LAW DEFAMATION

ENGLISH COMMON LAW COURTS CONSIDERED REPUTATION TO BE AN INTEREST DESERVING OF PROTECTION. THEY RECOGNIZED AN ACTION FOR MONEY DAMAGES TO COMPENSATE FOR INJURY RESULTING FROM DEFAMATORY COMMUNICATION.

CIVIL ACTION
TORT

I. DEFINITION: "A DEFAMATORY STATEMENT IS ONE THAT IS FALSE AND INJURIOUS TO THE REPUTATION OF ANOTHER OR EXPOSES ANOTHER PERSON TO HATRED, CONTEMPT OR RIDICULE OR SUBJECTS ANOTHER PERSON TO A LOSS OF THE GOOD WILL AND CONFIDENCE IN WHICH HE OR SHE IS HELD BY OTHERS. . . . A DEFAMATORY COMMUNICATION IS ONE THAT TENDS TO HARM THE REPUTATION OF ANOTHER AS TO LOWER HIM IN THE ESTIMATION OF THE COMMUNITY OR TO DETER THIRD PERSONS FROM ASSOCIATING OR DEALING WITH HIM." p. 254

II. ELEMENTS OF THE TORT OF DEFAMATION

1. PUBLICATION (TO ONE OTHER THAN THE PERSON DEFAMED)
2. OF A FALSE STATEMENT OF FACT
3. UNDERSTOOD AS BEING OF AND CONCERNING THE PLAINTIFF

[group libel, pp. 270-271]

4. RESULTING IN HARM TO PLAINTIFF’S REPUTATION
5. IN SOME CASES SPECIAL DAMAGES MAY BE REQUIRED

ROMAINE V. KALLINGER, pp. 253-254

MATHERSON V. MARCHELLO, pp. 263-264

SPECIAL DAMAGES—"THE LOSS OF SOMETHING HAVING ECONOMIC OR PECUNIARY VALUE WHICH MUST FLOW DIRECTLY FROM THE INJURY TO REPUTATION CAUSED BY THE DEFAMATION."

SLANDER

SLANDER PER SE--proof of special damages not required

ALL OTHER SLANDER--special damages must be proved

LIBEL

LIBEL PER SE--special damages not required

LIBEL PER QUOD--special damages must be proved

 

MATHERSON V. MARCHELLO, P. 266

III. DAMAGES

COMPENSATORY

GENERAL—PROOF IS NOT REQUIRED

SPECIAL—PROOF IS REQUIRED

NOMINAL

reputation not harmed

"libel proof"

PUNATIVE

Proof of malice ("evil intent or motive arising from spite or ill will") is required

IV. DEFENSES TO DEFAMATION AT COMMON LAW

1. TRUTH--"THE SUBSTANCE, THE GIST, THE STING OF THE CHARGE"

2. PRIVILEGE--

STATEMENTS BY JUDGES AND WITNESSES IN A JUDICIAL PROCEEDING

LEGISLATORS DURING DEBATE

BROADCASTERS GIVING EQUAL OPPORTUNITY TO POLITICAL CANDIDATES

Judge Roy Bean, Judge McKay

3. FAIR COMMENT

HONEST EXPRESSION OF OPINION

ON A MATTER OF PUBLIC CONCERN

BASED ON FACTS CORRECTLY STATED IN THE COMMUNICATION

4. FAIR REPORT

PUBLICATION OF MATERIAL IN A REPORT OF AN OFFICIAL ACTION OR PROCEEDING OR OF A MEETING OPEN TO THE PUBLIC

DEALING WITH MATTERS OF PUBLIC CONCERN

IS PRIVILEGED

JEWELL V. ATLANTA JOURNAL AND CONSTITUTION