Torts · Defamation

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MBE Torts: Defamation

An overview of defamation law as tested on the MBE, including key rules and common question patterns.

Overview

Defamation is a false statement about a person that harms their reputation. In order to establish a prima facie case of defamation, a plaintiff must demonstrate that the statement was defamatory, published to a third party, and that it caused actual harm. The defamation doctrine is divided into two categories: libel (written defamation) and slander (spoken defamation). Additionally, if the plaintiff is a public figure, they must prove actual malice—the statement was made with knowledge of its falsity or with reckless disregard for the truth.

Key Rules
  1. The statement must be false.
  2. The statement must be about the plaintiff.
  3. The statement must be made to a third party (publication).
  4. The statement must cause harm to the plaintiff's reputation.
  5. If the plaintiff is a public figure, they must prove actual malice.
Common Question Patterns
  • Questions about whether a statement qualifies as defamatory.
  • Questions about the defenses available for defamation claims.
  • Questions distinguishing between public figures and private individuals in defamation cases.
Practice Questions

1. A reporter writes an article falsely alleging that a local businessman is being investigated for fraud. The article is widely published. The businessman claims defamation. What must he prove to succeed?

A. A) That the statement was made with actual malice.(Correct)

B. B) That the statement was true.

C. C) That the statement was published to a third party.

D. D) That the reporter is not a public figure.

Explanation: As a public figure, the businessman must prove actual malice since the statement involves a matter of public concern.

2. An individual tells a friend that a co-worker has been stealing office supplies. The co-worker overhears and claims defamation. What is the most likely outcome?

A. A) The co-worker will win because the statement was false.

B. B) The co-worker will lose because the statement was not published.(Correct)

C. C) The co-worker will win because it harmed their reputation.

D. D) The co-worker will lose because it was a private conversation.

Explanation: The statement was not published to a third party (only overheard), which is necessary for a defamation claim.

3. An author writes a novel depicting a character named 'John Doe' who commits various crimes. John Doe, a real person, sues for defamation. What will most likely happen?

A. A) John Doe will lose, as the book is clearly indicated as fiction.(Correct)

B. B) The author will have to prove the character is based on John Doe.

C. C) John Doe will win because the character's name is the same.

D. D) The author will not be liable if the character's conduct is exaggerated.

Explanation: Since the work is a fictional narrative, and no false statement about John Doe can be established, the claim will fail.

4. If a statement is made about an individual that is true, can it still be considered defamation?

A. A) Yes, if the statement harms their reputation.

B. B) No, truth is an absolute defense to defamation.(Correct)

C. C) Yes, if made with a malicious intent.

D. D) No, unless the individual is a public figure.

Explanation: Truth is a definitive defense to defamation claims, meaning if the statement is true, it cannot be actionable.

5. After a viral social media post claims that a local politician took bribes, the politician sues for defamation. He is a public figure. What standard must he meet?

A. A) Preponderance of the evidence.

B. B) Clear and convincing evidence.

C. C) Actual malice.(Correct)

D. D) Negligence.

Explanation: As a public figure, the politician must prove that the statement was made with actual malice to succeed in his defamation claim.

Test-Taking Tips
  • Always determine whether the statement is false or true, as truth is a complete defense.
  • Identify whether the plaintiff is a public or private figure to ascertain the applicable standard of fault.
  • Pay attention to the requirement of publication; statements must be made to third parties.
  • Analyze the context of the statement—words may be actionable depending on their meaning and context.
  • Be familiar with common defenses to defamation claims such as absolute privilege and consent.

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