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Torts II
University of Kansas School of Law
Westerbeke, William E.

Defamation-Chapter 17

I. Nature of a Defamatory Communication
A. Defamation in General
1. Elements of Defamation
a. False and defamatory statement made by the defendant (very broad range of concepts)
b. Of and concerning the plaintiff
c. Publication to a third party
d. Scienter (Knowledge of falsity)
e. Damages caused by the statement to the reputation (General damages or pecuniary)
2. Defamation encompasses the twin torts of libel, for a published defamatory statement, and slander, for a spoken defamatory statement
3. A living person can be defamed, but a dead person cannot
4. The publication of a defamatory statement need only be to one person
5. If the facts show who is defamed, then the facts are colloquium
6. Retraction
a. It can serve as a defense, but only if it is made immediately after the defamation and negate the defamation
b. Prove that actual damages are less then plaintiff claims
c. Negate the malice requirement
d. Indication of no abuse of privilege
B. Defamatory statements
1. When the meaning of a statement is clear on its face, the court may determine whether it is defamatory
2. Where the defamatory nature of a statement is ambiguous, the trier of fact must determine whether the statement meets the definition of defamation
a. According to some courts, that statement must tend to arouse feelings of scorn or contempt among common readers or listeners or the “good” part of society
b. Other courts look at a group in the broad mainstream with very diverse thoughts to decide if the statement would invoke ridicule in the minds of the public
3. Correction of the impression will not necessarily be sufficient to get a person out of a defamation problem
4. A statement can be a picture, cartoon, dramatization or gesture.
C. Substantially True (defense)
1. The defendant bore the burden of proving that a statement was true or substantially true
2. This is historically applied quite literally.
3. The statements that are made must be substantially true, not 100% true
4. There is no substantially true defense, because the only inaccuracy that is allowed will have nothing to do with the defamatory statement
5. There is no need to prove s

be similar to the real person or event
4. A parody or a joke would not be considered defamation even tough there is a touch of truth in the joke
II. Libel and Slander
A. Libel
1. Libel consists of the publication of defamatory matter by written or printed words or by its embodiment in physical form, or by any other form of communication which has the potentially harmful characteristic of written or printed words
2. Radio and television broadcasts are held to be libel because they can reach a broad audience
3. Other types of technological augmentation can also be libel
4. Special damages are inferred in libel because the defamation is permanent
5. Libel is a more permanent statement that reaches a large nature of people and is usually premeditated.
6. With libel per se nothing else has to be proven to establish the defamatory nature because it is libel on its face