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Re: Has LD committed the tort of Defamation or "false light?
Posted by -- on 2/12/08

    On 2/12/08, Bigger Badder Better wrote:
    > Am I incorrect in saying that defamation requires someone being damaged?
    > Isn't that why it is a tort? Also, a third party must understand the e-
    > mail as being derrogatory. Am I wrong?

    My answer to the first question is Yes and No.

    My answer to the second question is; the standard for a defamatory
    statement is whether the statement itself is true vs. false it does not
    matter whether the statement is complimentary or derogatory as it is
    understood by a third party.


    Defamation requires "false information" be "communicated" to a third
    party. There are several types of defamation that provide damage "per se"
    that means damage is presumed without proof of actual damage. If the
    defamation involves a person's profession then there is damage per se. If
    the defamation involves a loathsome disease then it is damage per se. If
    it involves a woman’s chaste reputation it is per se damage. Finally, if
    the statement alleges moral turpitude it is per se damage.

    Even without proof of actual damages it is possible in many jurisdictions
    to obtain "nominal" damages for defamation. An award of $1 would be
    nominal damages. Also equitable remedies may be sought if strictly
    pecuniary damages are not provable or would not be an adaquate remedy.
    (for example; a court order that your neighbor take down a sign that
    contains a defamatory statement about you)

    So, Yes proof of damage would be necessary for more than a nominal award
    but there are several exceptions as well as the possibility of equitable
    remedies.

    Of course there are defenses to defamation even if there is a false
    statement made to a third party and damages exist. Privilege such as
    immunity for the speaker during a legislative address is absolute and
    otherwise defamatory statements made about a public figure requires actual
    malice rather than just negligence for defamation to occur.

    As for the requisite understanding of a third party, it is not necessary
    that the third party believes or understands the statement to be
    derogatory. A false statement might be understood by a third party as
    complementary but still be defamation. If for example, A said to B, "C
    finally quit that crummy job he had" B might think it was a favorable
    statement that A made about C. The standard for the statement to be
    defamation is that it is "false" but not necessarily that it must be
    understood as derogatory by a third party. Truth is a defense to
    defamation but just because a false statement was not intended to be
    derogatory by the maker it is still defamation if it was false, made
    negligently, and a reasonable person would find it offensive. It is not
    the person who hears the statement that sets the standard for an offensive
    statement, it is that "all knowing" reasonable person who sets the
    standrad.

    "False light" is another matter all together but you didn't ask about that
    tort. In the case of LD, I think we may have more of a "false light"
    tort. Since the "false light" concerns Ms. Barnes' profession, damage per
    se probably follows. However, as I read the elements of a false light
    tort -- damage is not an element as it is in defamation. The most
    commonly required elements of a "false light" tort include:

    (1). A publication by the Defendant about the Plaintiff;
    (2). made with actual malice;
    (3). which places the Plaintiff in a false light;
    (4). that would be highly offensive or embarrassing to reasonable persons.

    I find the subtle difference between Defamation and "false light" an
    interesting legal topic. I would be interested in your comments on the
    difference between these two types of torts and how they each might apply
    (or not) to the false email posted on this forum by LD. (Ignoring the
    vagaries of Internet law)

     
     

 
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