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What is Defamation, Slander, & Libel - Quick Lessons - Episode # 3 - YouTube
Channel: Think LegalEase
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I hope this finds you well. Today we're going to
look at the common law rule for
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defamation and how slander and libel
play into the defamation rule. the
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landmark Supreme Court case is New York
Times vs Sullivan. we won't go to in dept
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with New York vs Sullivan in this video
but I do intend to create a case brief
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for New York Times v. Sullivan in the
near future. So let's look at the
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elements of defamation. There's either
four or six elements when trying to
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prove defamation. your regular run of the
mill defamation is only four elements
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and when the defamation concerns a
matter of public concern then you get
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the two other layers of defamation. So here are the elements. There first must be
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defamatory language. it must be of and
concerning the plaintiff which is a
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person bringing suit. publication of that
if defamatory statement by the defendant to
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a third person, and then there must be
damage to the plaintiff's reputation. as
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I previously said, if the matter is of
public concern, meaning something that
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the public would find value in, then two
other elements must be proved and that
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is falsity of the defamatory language
and fault on the part of the defendant.
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so let's look at each element and break it
down. when it comes to defamatory
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language, the meaning of defamation is
anything that really harms a person's
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reputation.
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next we come to the of and concerning the
plaintiff.
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the defamatory statement must relate to
the plaintiff. it can't be about the
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plaintiff sister, the plaintiffs
brother. It has to be about the plaintiff.
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and there's an interesting little side
twist in there when it comes to groups.
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so a group can bring a lawsuit for
defamation if a defamatory statement
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refers to all members of a small group.
A good number to keep in mind is about
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15 people or so. if the statement is
about a large group then no member can
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really prove that the statement
concerns them. and finally if the
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statement is about some members of a
small group,
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well then the person bringing the
defamation claim may be able to show
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that a reasonable person could view the
statement as pertaining to the plaintiff.
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next we come to publication. publication
is really a term of art. it doesn't
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necessarily require that the statement
be posted on the internet or written or
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published in a book. it's really any kind
of communication by any method when it's
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communicated to one or more people who
actually understand it. so if you're at a
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party and everybody in that party speaks
English except you and your friend who
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speak Portuguese and you scream out in
Portuguese something defamatory about
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your friend.
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well you did publicize it. you did make a
publication. and it was to a third person.
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but it was unable to be understood. and
publication can either be intentional or
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negligent.
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intentional publication is where the
defendant's intent was to defame the
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person they intentionally spoke
something or wrote something about the
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Plaintiff. Negligent publication, for example,
occurs when an individual types up a
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defamatory email intending just to save
it on their computer, let's just say. well
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mistakenly they press Send and it goes
to the whole entire company. just an
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example. and then you must show damage to
the plaintiff's reputation. now this is
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where our slander or libel comes in.
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The easy way to remember the difference is:
I like to look at the S and take the S
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in slander and that's how I keep them
separate in my mind.
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slander is spoken while libel is
written defamation. and whether the
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defamatory language is slander or libel
really goes to the heart of damages and
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what kind of damages that the plaintiff
can recover. so for libel which is our
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written defamation, the plaintiff does
not need to prove any kind of special
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damages or general damages. now that's
not the same for slander. when it comes
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to slander which is our spoken
defamation, the plaintiffs gonna have to
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prove special damages unless that
defamation, that slander, falls into one
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of four categories or one of four types.
the first type being that the defamation
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reflects adversely on business or
professional conduct. the second being
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that someone has a loathsome disease. the
third that someone is guilty of a
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common-law crime.
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a crime of moral turpitude. and finally
it's defamatory to accuse a woman of
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being unchaste at common law. ok so our other two
elements, the falsity and fault come
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into play when there's a matter of
public concern at the heart of the
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defamatory statement. You still must prove
the four elements we just spoke about
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but then you have to ask yourself, can the
plaintiff prove that the defamation was
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false. if they can then you have to prove
fault on the part of the defendant.
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here's where it gets a little hairy. if
the plaintiff is a public figure or some
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sort of public official. Then this is where
the New York Times vs Sullivan comes in.
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you have to prove actual malice on the
part of the defendant. if it's a private
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individual someone unknown to anyone.
Well you can either prove there was
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actual malice on the defendant's part, or
there was negligence on the defendant's
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part. so that's how we prove defamation
but there are some defenses the
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defendant can raise, and these are known
as privileges. So are absolute privileges
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are the executive privilege and this
concerns communications by the President
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as well as some other members of his
executive branch. judicial privileges and
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these are protections from comments by a
judge or a lawyer or parties or
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witnesses. but the comments must be made
and related to the case. the ongoing case.
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and then there's the legislative
privilege. and this privilege applies to
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the legislative branch of government. for
example if the speakers participating in
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a proceeding.
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and then you have your qualified
privileges. and there's three of the
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qualified privilege as well. you have the
privilege to protect yourself,
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protect others, or protect a group or
common interest. in protecting yourself
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the speaker may make a statement in
order to protect their own personal
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interests. for example if you're walking
down the street and someone picks your
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pocket or you believe someone picked your
pocket and you point to someone in the
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crowd and say "that man stole my wallet,"
while you may be mistaken but you had a
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privilege because you are protecting
your personal interest. you have a
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privilege when you protect others. when
the speaker is actually trying to
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protect other person's interest. for
example a lady thinks she saw someone
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steal your wallet and she says in a
crowd "hey that man just stole his wallet."
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finally there's a protection for the
group or common interests. and this
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occurs when the speaker makes a
statement to protect the group that he
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or she is a member of. this can occur
with your resume and references. all of
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these qualified privileges kinda
fall into that protecting interests.
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finally the qualified privileges can be
lost, and they can be lost when they are
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abused. such as excessive publication or
making a statement with malice then
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there not going to apply anymore.
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thanks for watching
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