Monday, December 19, 2011

Torts: Defamation

Effectively answering a Defamation issue, both on the MBE, and on the essay section of a bar exam, requires a very structured approach. This post will outline my advice for doing so:

A first step in analyzing an issue of Defamation is to determine whether the statement claimed to be defamatory is of a public or private concern. This is an initial consideration, because if the issue is of private concern, then common law defamation applies, and the only elements that plaintiff needs to prove are (1): defamatory language; (2): of or concerning the plaintiff; (3): publication thereof by defendant; and (4): damages to plaintiff's reputation. Importantly, there is no need for plaintiff to prove that the statement was false (rather, defendant will have to prove that the statement was true), and fault on the part of defendant need not be proven.

If, on the other hand, the matter is one of public concern, then, in addition to the four elements outlined above, plaintiff must prove that the statement claimed as defamatory is false, and that the defendant was at fault in making the statement.

If you are dealing with a matter of public concern, then next, you'll want to determine the extent of fault that plaintiff must prove. That question is answered by determining whether the plaintiff is a public or private figure. A public figure (one who has achieved pervasive fame or notoriety or has voluntarily assumed a central role in a particular public controversy) must prove actual malice, (that defendant made a false statement with knowledge that the statement was false, or with reckless disregard for the truth of the statement.) A private figure only needs to prove negligence, or that defendant made a false statement that a reasonable person would not have made.

One final point to keep in mind is that although a private figure in a matter of public concern only needs to prove negligence, by doing so that private figure will only be able to recover damages for actual injury. If, however, the private figure proves actual malice (which is generally only required of public figures), that private figure can recover presumed damages (as opposed to only damages for actual injury) as well as punitive damages. In other words, it's a good idea for a private figure plaintiff to prove actual malice, even though not required, if defendant made the defamatory statement with actual malice.


  1. Public is misspelt in line 29 as pubic. You might want to rectify that. Thanks for a great post.

  2. Ha! Appreciate it, can't believe I missed that.

  3. Thanks for a really helpful post. I’ve been struggling with the defamation analysis - in spite of having written about it at work - partly because the materials I’m using have explained the fault standards in different ways and partly because the law is so damn convoluted.

    So your explanation accounts for two important factors - nature of the statement (public or private concern) and status of the plaintiff (public figure/private figure).

    What changes, if anything, when we consider the status of the defendant (media defendant, or non-media defendant)? And how do these four factors (nature of statement, status of plaintiff, status of defendant) affect the damages that are available? Could you please, please explain DAMAGES in a defamation action and how the recoverable damages are affected by these factors.

    I have yet to come across a clear explanation of all these factors together, let along how they affect damages that are recoverable. If you can explain that, I will tip my hat to you and brag about this blog, a lot.

  4. Thanks for the note; I'm glad you've found the above info helpful. These are all good questions. Some of where we are going here goes beyond what's tested on the MBE, but I'll tell you what I know, and you're welcome to follow-up with questions or comments. In other words, we can figure it out together, based on what we both know.

    First, from all I've read about Defamation, the status of the defendant has little significance in determining the level of fault that the plaintiff needs to prove to recover damages. For example, assume we have a media defendant. If the plaintiff is a private figure, and the subject of the defamation is a matter of public concern, plaintiff will merely have to prove that the media defendant was negligent in determining the truth of the statement. If plaintiff is a public figure, then malice on the part of the media defendant needs to be proven.

    Damages gets a bit more complicated--but, again, I haven't seen too much in regards to changing the analysis based on the status of defendant. Damages are generally limited to actual damages in a case of slander. (This can include damages to reputation, mental anguish, etc., in addition to economic damages such as lost wages and future earnings). If the defamatory statement was one of libel, or slander per se, then, generally, damages can be presumed, even without a showing of actual damages. Punitive damages will also be allowed. If a private plaintiff proves that the defendant (media or non-media) was merely negligent, presumed damages are not available; a private plaintiff will have to prove fault at the level of malice in order to get presumed damages, and punitive damages.

    I should note that the above is based on the common law, and states can differ, which is where some of the confusion comes in. I hope it's been helpful, though. Again, you're welcome to ask follow-up questions or leave further comments.

  5. Thanks so much for the clarification. Here are some follow up questions.

    1) What points of law above would you say are beyond the scope of the MBE? I will not focus on them if it’s not tested.

    2) Can you define “presumed damages”? Does the term refer to a specific type of harm (like reputational harm)? Or does it just refer to damages to reputation, mental anguish” ? I guess what I’m looking for is a definition of the damages categories/an itemized list of what’s included in a particular damages category. Also, if you think I can skip this for purposes of the MBE topics I will GLADLY do so an focus on other issues.

    3) Based on your explanation would I be correct in thinking that the more important way that the status of the defendant (media/non-media) comes into play relates to the available defenses to defamation? i.e. a media defendant that publishes an alleged defamatory statement can defend by claiming the statement is absolutely/partially privileged or protected under the 1st amendment?

    Thanks again for your time and attention! This is a really helpful post.

  6. (1) I'd say (for MBE purposes, though your state may expand a bit), you need only focus on what I discussed in the original post here. The outlines will perhaps flesh out what was discussed here, but the points I hit upon are what are tested on the MBE. So, an example of what you need not focus on is the status of the defendant in determining any first amendment issues.

    (2) Presumed damages are those damages that, under certain circumstances, such as libel, and slander per se, the court will presume, once defamation has been proven, even if no specific harm has been proven. In other words, actual injury need not be proven by the plaintiff as a requirement for recovering damages. You can think of it in regards to harm to reputation, in the sense that once defamation has been proven, the law presumes that a person's reputation has been harmed. For MBE purposes I'd say the extent of damages you should think about are damages to reputation, and certain monetary damages, such as damages for lost wages, and future earnings (when applicable). Usually those monetary damages have to be proven, however (and they are often referred to as "special damages.")

    (3) The status of defendant can be an issue with respect to privileges, but if you're only dealing with a media defendant, you should focus on qualified, rather than absolute privileges. And remember, the defendant would have the burden of proving that the requirements for the privilege exist.

    Glad it helps. Defamation is an interesting, yet (as you've stated) convoluted area of the law!