Defamation in law of tort

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Defamation

Defamation is the communication of a false statement that harms the reputation of an individual. The law of defamation protects a person’s reputation and good name against communications that are false and derogatory. Defamation consists of two torts: libel and slander. Libel consists of any defamation that can be seen, most typically in writing. Slander is a form of defamation that consists of making false oral statements about a person which would damage that person’s reputation. If I spread a rumor that my neighbor has been in jail and this is not true, I could be held liable for slander.

A person is liable for the defamation of another. In order to prove defamation, the plaintiff must prove:

    - That a statement was made about the plaintiff’s reputation, honesty or integrity that is not true;

   -  There was publication to a third party (i.e., another person hears or reads the statement); and

   - The plaintiff suffers damage as a result of the statement.

Public figures have a more difficult time proving defamation. Politicians or celebrities are understood to take some risk in being in the public eye and many of them profit by their public persona. A celebrity must prove that the party defaming them knew the statements were false, made them with actual malice (intent to harm), or was negligent in saying or writing them. Proving these elements can be an uphill battle. However, an outrageously inaccurate statement that’s harmful to one’s career can be grounds for a successful defamation suit, even if the subject is famous. For example, some celebrities have won suits against tabloids for false statements regarding their ability to work, such as an inaccurate statement that the star had a drinking problem.

Another important aspect of defamation is the difference between fact and opinion. Statements made as "facts" are frequently actionable defamation. Statements of opinion or pure opinion are not actionable. Some jurisdictions decline to recognize any legal distinction between fact and opinion. To win damages in a libel case, the plaintiff must first show that the statements were "statements of fact or mixed statements of opinion and fact" and second that these statements were false. Conversely, a typical defense to defamation is that the statements are opinion. One of the major tests to distinguish whether a statement is fact or opinion is whether the statement can be proved true or false in a court of law. If the statement can be proved true or false, then, on that basis, the case will be heard by a jury to determine whether it is true or false. For example, your statement of opinion is just an opinion, and does not contain specific facts that can be proved untrue. “The waiters and waitresses at the Tivoli Restaurant are too slow and the food is too spicy.” This is a statement of opinion. “I got food poisoning at the Tivoli Restaurant” is potentially a defamatory statement if, in fact, the restaurant can prove that you never contracted food poison.”

Some statements, while libelous or slanderous, are absolutely privileged in the sense that the statements can be made without fear of a lawsuit for slander. The best example is a statement made in a court of law. An untrue statement made by a witness about a person in court which damages that person’s reputation will generally not be held to be liability to the witness as far as slander is concerned.

Strict liability torts  vs  Vicarious liability

Strict Liability

Strict or absolute liability is the legal responsibility for damage or injury, even if the person found strictly liable was not at fault. In order to prove strict liability in tort, plaintiff needs to prove only that the tort happened and that the defendant was responsible for the act or omission. In the case of strict liability in the USA, neither good faith nor the fact that the defendant took all possible precautions is a valid defense. A common example of strict liability is imposing product liability in the case of defectively manufactured products.

Strict liability applies especially in cases involving hazardous or dangerous activities.

Generally, liability based on a tort only arises where the defendant either intended to cause harm to the plaintiff or in situations where the defendant is negligent. However, in some areas, liability can arise even when there is no intention to cause harm or negligence. For example, when a contractor uses dynamite which causes debris to be thrown onto the land of another and damages a landowner’s house, the landowner may recover damages from the contractor even if the contractor was not negligent and did not intend to cause any harm. Basically, society is saying that the activity is so dangerous to the public that there must be liability. However, society is not going so far as to outlaw the activity.

Example: Acme Construction Company was constructing a highway. It was necessary to blast rock with dynamite. The corporation’s employees did this with the greatest of care. In spite of their precautions, some flying fragments of rock damaged a neighboring house. The owner of the house sued the corporation for damages. The corporation raised the defense that the owner was suing for tort damages and that such damages could not be imposed because the corporation had been free from fault. Was this defense valid? No. While ordinarily fault is the basis of tort liability, there are cases in which absolute liability is imposed on the actor. This means that when harm is caused, it is no defense that none was intended or that due care had been exercised to prevent the harm.

Other examples of absolute liability situations would be harm caused by storage of flammable gas and explosives, factories which produce dangerous fumes or smoke in populated areas, and the production of nuclear material. 

Vicarious Liability

Vicarious liability is the responsibility of the superior for the acts of their subordinate. It is the responsibility of a third party who has the right, ability or duty to control the activities of a violator. Typically liability flows from the relationship of master and servant. The relationship includes the power to direct the servant in the execution of the duties of his/her employment, and to control the acts that no injury is done to third persons.

An employer can be held vicariously liable for an employee’s tortious act against the person or property of a third party in a transaction of the employer’s business. If a negligent act is committed by an employee acting within the general scope of her or his employment, the employer will be held liable for damages. For example, if the driver of a gasoline delivery truck runs a red light on the way to a gas station and strikes another car, causing injury, the gasoline delivery company will be responsible for the damage if the driver is found to be negligent.