FAQ: Questions and Answers

[back to notice text] Question: What is defamation? Answer: Generally, defamation is a false and unprivileged statement of fact that is harmful to someone's reputation, and published "with fault," meaning as a result of negligence or malice. State laws often define defamation in specific ways. Libel is a written defamation; slander is a spoken defamation. [back to notice text] Question: What is "goodwill"? Answer: Goodwill is a business or trademark owner's image, relationship with customers and suppliers, good reputation, and expectation of repeat patronage. It is the value a trademark owner builds in a brand. [back to notice text] Question: What is "interference with contract" or "interference with prospective business relations"? Answer: One can be held liable for intentionally or negligently interfering with the existing or prospective economic relationships of another. (e.g. contractual/business relationships) The 2d restatement of the law which contain general defintions of the law taken from the laws of many states, defines the tort of Intentional Interference with Prospective Contractual Relations as follows: "One who intentionally and improperly interferes with another's prospective contractual relation (except a contract to marry) is subject to liability to the other for the pecuniary harm resulting from loss of the benefits of the relation, whether the interference consists of (a) inducing or otherwise causing a third person not to enter into or continue the prospective relation or (b) preventing the other from acquiring or continuing the prospective relation." Rest 2d (Torts) section 766B. Usually, damages are dependent on proof that "but for" the allegedly interfering behavior, an economic relationship, the contract, would have been entered into. Most jurisdictions and the restatement have slightly different wording for the seperate tort of interference with an already existing contractual relationship.(e.g. when a 3rd party's behavior prevents the performance of or induces the breach of a pre-existing contract) [back to notice text] Question: What is the "publication" of a defamatory statement? Answer: Publication is the dissemination of the defamatory statement to any person other than the person about whom the statement is written or spoken. [back to notice text] Question: What is defamation? Answer: Generally, defamation is a false and unprivileged statement of fact that is harmful to someone's reputation, and published "with fault," meaning as a result of negligence or malice. State laws often define defamation in specific ways. Libel is a written defamation; slander is a spoken defamation. [back to notice text] Question: What is "interference with contract" or "interference with prospective business relations"? Answer: One can be held liable for intentionally or negligently interfering with the existing or prospective economic relationships of another. (e.g. contractual/business relationships) The 2d restatement of the law which contain general defintions of the law taken from the laws of many states, defines the tort of Intentional Interference with Prospective Contractual Relations as follows: "One who intentionally and improperly interferes with another's prospective contractual relation (except a contract to marry) is subject to liability to the other for the pecuniary harm resulting from loss of the benefits of the relation, whether the interference consists of (a) inducing or otherwise causing a third person not to enter into or continue the prospective relation or (b) preventing the other from acquiring or continuing the prospective relation." Rest 2d (Torts) section 766B. Usually, damages are dependent on proof that "but for" the allegedly interfering behavior, an economic relationship, the contract, would have been entered into. Most jurisdictions and the restatement have slightly different wording for the seperate tort of interference with an already existing contractual relationship.(e.g. when a 3rd party's behavior prevents the performance of or induces the breach of a pre-existing contract) [back to notice text] Question: What defenses may be available to someone who is sued for defamation? Answer: There are ordinarily 6 possible defenses available to a defendant who is sued for libel (published defamatory communication.) 1. Truth. This is a complete defense, but may be difficult to prove. 2. Fair comment on a matter of public interest. This defense applies to "opinion" only, as compared to a statement of fact. The defendant usually needs to prove that the opinion is honestly held and the comments were not motivated by actual "malice." ( Malice means knowledge of falsity or reckless disregard for the truth of falsity of the defamatory statement.) 3. Privilege. The privilege may be absolute or qualified. Privilege generally exists where the speaker or writer has a duty to communicate to a specific person or persons on a given occasion. In some cases the privilege is qualified and may be lost if the publication is unnecessarily wide or made with malice. 4. Consent. This is rarely available, as plaintiffs will not ordinarily agree to the publication of statements that they find offensive. 5. Innocent dissemination. In some caes a party who has no knowledge of the content of a defamatory statement may use this defense. For example, a mailman who delivers a sealed envelope containing a defamatory statement, is not legally liable for any damages that come about from the statement. 6. Plaintiff's poor reputation. Defendant can mitigate (lessen) damages for a defamatory statement by proving that the plaintiff did not have a good reputation to begin with. Defendant ordinarily can prove plaintiff's poor reputation by calling witnesses with knowledge of the plaintiff's prior reputation relating to the defamatory content. [back to notice text] Question: Can an opinion be defamatory? Answer: No ? but merely labeling a statement as your "opinion" does not make it so. Courts look at whether a reasonable reader or listener could understand the statement as asserting a statement of verifiable fact. (A verifiable fact is one capable of being proven true or false.) This is determined in light of the context of the statement. A few courts have said that statements made in the context of an Internet bulletin board or chat room are highly likely to be opinions or hyperbole, but they do look at the remark in context to see if it's likely to be seen as a true, even if controversial, opinion ("I really hate George Lucas' new movie") rather than an assertion of fact dressed up as an opinion ("It's my opinion that Trinity is the hacker who broke into the IRS database"). [back to notice text] Question: What defenses may be available to someone who is sued for defamation? Answer: There are ordinarily 6 possible defenses available to a defendant who is sued for libel (published defamatory communication.) 1. Truth. This is a complete defense, but may be difficult to prove. 2. Fair comment on a matter of public interest. This defense applies to "opinion" only, as compared to a statement of fact. The defendant usually needs to prove that the opinion is honestly held and the comments were not motivated by actual "malice." ( Malice means knowledge of falsity or reckless disregard for the truth of falsity of the defamatory statement.) 3. Privilege. The privilege may be absolute or qualified. Privilege generally exists where the speaker or writer has a duty to communicate to a specific person or persons on a given occasion. In some cases the privilege is qualified and may be lost if the publication is unnecessarily wide or made with malice. 4. Consent. This is rarely available, as plaintiffs will not ordinarily agree to the publication of statements that they find offensive. 5. Innocent dissemination. In some caes a party who has no knowledge of the content of a defamatory statement may use this defense. For example, a mailman who delivers a sealed envelope containing a defamatory statement, is not legally liable for any damages that come about from the statement. 6. Plaintiff's poor reputation. Defendant can mitigate (lessen) damages for a defamatory statement by proving that the plaintiff did not have a good reputation to begin with. Defendant ordinarily can prove plaintiff's poor reputation by calling witnesses with knowledge of the plaintiff's prior reputation relating to the defamatory content. [back to notice text] Question: What are "actual" and "punitive" damages? Answer: Actual damages are damages awarded to a winning party to compensate them for a proven injury or loss; damages that repay actual losses. Punitive damages are damages awarded in addition to actual damages when the defendant acted with recklessness, malice, or deceit. Punitive damages are intended to punish and thereby deter blameworthy conduct. (Black's Law Dictionary)

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