Defamation per se

[Shebarb]

What is the name of your state (only U.S. law)?

 

[quincy]

What is the name of your state (only U.S. law)?

What is the name of your state?

 

[quincy]

Defamation laws vary by state.

While waiting for the state name, however, I can say that when facts extrinsic to a statement or story are necessary to understand its defamatory nature, that is called "defamation per quod."

When words are defamatory on their face - when the defamatory nature of a statement or story is clear because the words used carry the defamatory meaning (like rapist or child molester) - that is called "defamation per se."

In most states, when a statement or story is defamatory per se, no harm to a reputation needs to be proved. Harm to reputation is presumed and damages can be awarded on this presumed injury.

 

[Shebarb]

Defamation laws vary by state.

While waiting for the state name, however, I can say that when facts extrinsic to a statement or story are necessary to understand its defamatory nature, that is called "defamation per quod."

When words are defamatory on their face - when the defamatory nature of a statement or story is clear because the words used carry the defamatory meaning (like rapist or child molester) - that is called "defamation per se."

In most states, when a statement or story is defamatory per se, no harm to a reputation needs to be proved. Harm to reputation is presumed and damages can be awarded on this presumed injury.

My apologies. State of New York

 

[quincy]

My apologies. State of New York

Thanks. What is your question about defamation per se?

 

[Shebarb]

Thanks. What is your question about defamation per se?

I was wondering what your thoughts were if you think he should or could lose his privilege. Also if you think he acted recklessly or not. I am sorry if I chose the wrong heading or didn't make myself clear. Thank you very much for replying.

 

[quincy]

I was wondering what your thoughts were if you think he should or could lose his privilege. Also if you think he acted recklessly or not. I am sorry if I chose the wrong heading or didn't make myself clear. Thank you very much for replying.

I am not sure what the situation is. Who is "he" and what "privilege" are you talking about? A few details would help.

 

[Shebarb]

I am not sure what the situation is. Who is "he" and what "privilege" are you talking about? A few details would help.

He as in the publisher, the neighbor who came out with a shotgun. A defense that a defendant could have is that there was a conditional or qualified privilege. A defendant can lose that privilege if he acted recklessly in determining the truth or if he was negligent. I believe he was negligent in that he didn't check what I asked him to. It's all in my post.

 

[Shebarb]

I am not sure what the situation is. Who is "he" and what "privilege" are you talking about? A few details would help.

My apologies once again. I had originally seen my original post and now I do not. I appreciate your time very much, but it is too long to write again right now. Thank you again though.

 

[cbg]

WHERE is it all in your post?

 

[quincy]

He as in the publisher, the neighbor who came out with a shotgun. A defense that a defendant could have is that there was a conditional or qualified privilege. A defendant can lose that privilege if he acted recklessly in determining the truth or if he was negligent. I believe he was negligent in that he didn't check what I asked him to. It's all in my post.

Your post with this information is missing. If you previewed your post prior to submitting it, and you are using a mobile device, that erases content.

Right now, you have me totally confused.

What publisher, what neighbor with gun, what privilege?

Did a newspaper print a story that you believe was false?

And who are you in all of this?

 

[Taxing Matters]

My apologies. State of New York

The basic definition of defamation in New York is the following:

The elements of a cause of action for defamation are a “ ‘false statement, published without privilege or authorization to a third party, constituting fault as judged by, at a minimum, a negligence standard, and it must either cause special harm or constitute defamation per se’ ” (Salvatore v. Kumar, 45 A.D.3d 560, 563, 845 N.Y.S.2d 384, quoting Dillon v. City of New York, 261 A.D.2d 34, 38, 704 N.Y.S.2d 1).​

Geraci v. Probst, 61 A.D.3d 717, 718, 877 N.Y.S.2d 386, 388 (2009), aff'd as modified and remanded, 15 N.Y.3d 336, 938 N.E.2d 917 (2010)(bolding added). As you can see from the part I bolded, the importance of defamation per se is that it allows the plaintiff to succeed in a defamation lawsuit without the need to prove “special harm” (assuming the other elements are met, of course). New York generally follows the majority of states in that defamatory statements that fall into one of four categories are considered to be defamation per se. Those categories are defamatory statements that:

(i) charge the plaintiff with a serious crime;
(ii) tend to injure another in his or her trade, business or profession;
(iii) plaintiff has a loathsome disease; or
(iv) impute unchastity to a woman.

See Liberman v. Gelstein, 80 N.Y.2d 429, 435, 605 N.E.2d 344, 347–48 (1992). In short, if the defamatory statement falls into one of the above four categories the plaintiff will not have to prove any special harm in order to make a good defamation claim.

 

[quincy]

That is all nice - but it doesn't help with understanding what is going on.

 

[quincy]

... A defense that a defendant could have is that there was a conditional or qualified privilege. A defendant can lose that privilege if he acted recklessly in determining the truth or if he was negligent. I believe he was negligent in that he didn't check what I asked him to ...

Okay. Shooting blind here.

News media can publish defamatory statements if these defamatory statements are from legislative, judicial or other public and official proceedings. There is a qualified privilege that attaches to fair and accurate reports of these statements.

This privilege is qualified (as opposed to absolute) because it will not hold if the report is made with actual malice (knowingly false published with an intent to harm) or if it is not a fair and accurate accounting of what was stated or if additional comments have been added to change or skew the facts.

It is very difficult to successfully sue a traditional publisher for defamation. Not impossible, but difficult and very expensive.

And that is about all I can say about the story of a publisher, a man with a gun and qualified privilege.

 

[Taxing Matters]

That is all nice - but it doesn't help with understanding what is going on.

My post was meant to do two things (1) provide the basic elements of defamation in NY state and (2) show how defamation per se, which is what the OP started with in the subject line, fits in. The idea was to give the OP a framework to understand what it takes to make a good defamation claim.

One of the elements of a defamation claim is that the statement must not be privileged, as stated in the case I quote earlier. Now the OP has raised the issue of privilege and in regard to qualified privilege I agree with the following:

News media can publish defamatory statements if these defamatory statements are from legislative, judicial or other public and official proceedings. There is a qualified privilege that attaches to fair and accurate reports of these statements.

This privilege is qualified (as opposed to absolute) because it will not hold if the report is made with actual malice (knowingly false published with an intent to harm) or if it is not a fair and accurate accounting of what was stated or if additional comments have been added to change or skew the facts.

It is very difficult to successfully sue a traditional publisher for defamation. Not impossible, but difficult and very expensive.

And that is about all I can say about the story of a publisher, a man with a gun and qualified privilege.