What is the burden of proof the plaintiff must meet in a defamation suit? Why is

Question

What is the burden of proof the plaintiff must meet in a defamation suit?

Why is this burden so high? What does a public figure or public official have to prove?

What does a private citizen have to prove? What is the burden of proof in invasion of privacy cases?

What is “publication” and what does the plaintiff have to prove?

What is “publicity” and what does the plaintiff have to show?

Also think how you would answer this, see below.

a) List the three kinds of warranties and give an example of each.

b) List the three kinds of defects in products and give an example of each.

Explanation / Answer

Ans. 1 : Defamation laws protect the reputations of individuals and other entities (such as businesses) from untrue and damaging statements. Libel refers to statements that can be seen (typically written and published), while slander occurs when a defamatory statement is spoken or otherwise audible (such as a radio broadcast). To prove either type of defamation, plaintiffs must prove the following four elements:

There are two separate defamation doctrines. One applies to those who are called "private persons". The other applies to those who are referred to as "public figures". The burden of a public figure to prove defamation is much higher.

Ans. 2 :The second form of defamation is that which involves statements about a “public figure" (i.e. a politician or entertainment celebrity). The elements of proving a false statement of fact are the same but there are certain differences. In a public figure case, the Plaintiff must prove actual damages. Also, the Plaintiff must prove malice; either that the Defendant made the false statement with the intent to injure or with a reckless disregard for the truth of the statement.

Also, the level of proof necessary for the public figure Plaintiff to prove malice is much higher than the level of proof necessary for the private person Plaintiff to prove at least negligence. In public figure cases, the proof of malice in most states is by "clear and convincing evidence" (i.e. more than a preponderance but less than the criminal burden of “beyond a reasonable doubt"). Thus, in public figure cases, the public figure who claims defamation must prove much more because they are viewed as fair game for public comment.

Ans. 3:Generally, in a defamation case in which the comments are directed about a “private person", the Plaintiff must prove that the Defendant made a false statement of fact, that the Plaintiff was without any legal privilege to make the statement or exceeded the privilege, that the statement caused actual damages, and that the statement was made at least with negligence (recklessness or intentional malice may also be shown but are not necessary in proving defamation against a private person).

The negligence must be proven by a “preponderance of the evidence" (sort of like saying 51/49; enough to tilt the scales). As noted, there is no requirement that the Plaintiff prove any intent to harm (actual malice) or even recklessness.

Also, if the statement is the type which is considered “per se" defamation (i.e. about one’s criminal background, business character, chastity, and certain other areas), then even actual damages need not be proven because they are presumed. Absent proof of actual damages, a Plaintiff in a "per se" case may recover nominal damages (i.e. $1). However, in "per se" cases, malice is also presumed.

This is helpful because it takes away the Plaintiff's need to prove negligence. It is also helpful because it enables a Plaintiff to seek punitive damages. Thus, in "per se" cases, where no actual damages are proven, the potential for a substantial recovery still exists because of the opportunity to seek puntive damages.

It should be noted that in "per se" cases, the presumption of malice may be rebutted by evidence of the Defendant. If the presumption is rebutted, then it is still the Plaintiff's burden to prove at least negligence.

Ans. 4 :Another requirement in libel and slander cases is that the defendant must have published defamatory information about the plaintiff. "Publication" certainly includes traditional forms, such as books, newspapers, and magazines, but it also includes oral remarks. A streaming audio clip on the Internet may be considered a publication in this context. So long as the person to whom a statement has been communicated can understand the meaning of the statement, courts will generally find that the statement has been published.

Reference to the Plaintiff

In a defamation action, the recipient of a communication must understand that the defendant intended to refer to the plaintiff in the communication. Even where the recipient mistakenly believes that a communication refers to the plaintiff, this belief, so long as it is reasonable, is sufficient. It is not necessary that the communication refer to the plaintiff by name. A defendant may publish defamatory material in the form of a story or novel that apparently refers only to fictitious characters, where a reasonable person would understand that a particular character actually refers to the plaintiff. This is true even if the author states that he or she intends for the work to be fictional.

Ans 5 : In some circumstances, an author who publishes defamatory matter about a group or class of persons may be liable to an individual member of the group or class. This may occur when: (1) the communication refers to a group or class so small that a reader or listener can reasonably understand that the matter refers to the plaintiff; and (2) the reader or listener can reasonably conclude that the communication refers to the individual based on the circumstances of the publication.

he right of publicity protects a plaintiff’s identity being used by others for non-protected commercialpurposes. The plaintiff’s identity means any attribute of an individual that serves to identify that individual to an ordinary, reasonable viewer or listener, including but not limited to the plaintiff’s name, signature, photograph, image, likeness, or voice. The right of publicity is violated when the unauthorized commercial use of a plaintiff’s identity occurs. A commercial use occurs when the defendant offers the plaintiff’s identity to promote the sale of products, services, or fundraising.

Elements for the Right of Publicity

The plaintiff must show certain elements to make a publicity rights claim. Sometimes these elements are statutory, sometimes they are based on common law. A plaintiff must generally show that the defendant:
• Used the plaintiff’s identity.
• The defendant appropriated the plaintiff’s name and likeness to the defendant’s commercial advantage.
• The plaintiff gave no consent.
• The plaintiff had an injury.

Defenses for the Right of Publicity

There are five common defenses to the tort of right of publicity. The first defense is using a person’s identity to portray that person in a work of art as long as there is not a commercial profit. Second, is using the plaintiff’s likeness for non-commercial purposes.For example, using the plaintiff’s likeness for news, public affairs, sports, and politics.
Third, is the exception for professional photographers that allows them to display their work at their place of business. A defense fourth is that the plaintiff consented to the publication. A fifth defense is the statute of limitations has expired. This term describes the maximum amount of time the plaintiff can wait before bringing a lawsuit. In the right of publicity cases, the statute of limitations ordinarily runs from the date of first publication of the offending facts. It is common to be anywhere from one to three years.

Ans 6 A:

Ans 3 B : There are three types of product defects that can result in product liability cases

1) Design Defect: This basically means the whole product was designed poorly or not properly tested, in which case all the products will likely be defective and dangerous.

2) Manufacturing Defect: The product was designed fine, but the error or dangerous aspect was introduced during the making of the product. Often not all the products will be dangerous, just those with the problem caused during manufacturing.

3) Marketing Defect: The name of this is a little misleading because the problem may not be contained within the scope of what most people consider marketing. Instead, this defect is often seen in the warnings and instructions included with a product - if the manufacturer fails to provide proper warning labels or clear instructions to help consumers avoid injuries they can be held liable.

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