Torts Deep Dive: Defamation & Privacy

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Torts Deep Dive: Defamation & Privacy— Words, Fault, and Reputation

Standfirst:

Defamation protects reputation — the line between what’s said and what’s true. It’s one of the most cross-tested torts because it blends common law principles with constitutional limits on speech.

In this Deep Dive, we’ll break down the full structure of Defamation — from the core common law rule to libel, slander, and the constitutional overlay — and then transition into the Privacy Torts, which often arise alongside defamation on exams. Together, they form the foundation of reputation and dignity law.

Why Defamation Is So Often Tested

If you’re a 1L, Defamation introduces you to the tension between tort protection and free speech.

If you’re a bar taker, it’s a predictable minefield — one that demands both doctrinal precision and structured reasoning.

Defamation sits at the crossroads of intentional torts and constitutional law.

After studying Negligence — the law of carelessness, Intentional Torts — the law of purpose and control, and Products Liability — the law of defect and duty, Defamation completes your understanding of how words themselves can be actionable conduct.

The Core Rule (Common Law Framework)

At common law, Defamation requires four elements:

Defamatory Statement – A false statement that tends to harm the plaintiff’s reputation or deter others from associating with them.
“Of and Concerning” the Plaintiff – The statement must reasonably refer to the plaintiff.
Publication to a Third Person – The statement must be communicated to someone other than the plaintiff.
Damages – Actual or presumed harm to reputation.

A defamatory statement must be more than insult or opinion — it must assert or imply a false fact that diminishes reputation.

Truth is always an absolute defense.

Libel and Slander

At common law, the form of the statement determines which damages rules apply.

Libel is written, printed, or otherwise recorded defamation (including digital publication). Because it’s permanent, damages are presumed — you do not need to show specific loss.

Slander is spoken or transient defamation. Because it’s considered less harmful, special damages (actual economic harm) are normally required — unless it qualifies as Slander Per Se.

Libel Per Se and Libel Per Quod

Even within libel, the law distinguishes between statements defamatory on their face and those defamatory by context.

Libel Per Se: The defamatory meaning is obvious on its face. For example, saying “P is a criminal” is clearly defamatory without any outside information. Damages are presumed.

Libel Per Quod: The statement appears innocent until you consider external facts. For instance, saying “P was seen at the Red Roof Inn with X” might seem harmless — but if readers know X is married to someone else, the statement becomes defamatory by implication. Because the harm isn’t clear on its face, the plaintiff must prove special damages (actual loss).

Per Quod vs. “Of and Concerning” — Common Confusion Explained

This is one of the most misunderstood distinctions in defamation law — and examiners love to test it.

At first glance, “libel per quod” can look like it means “the plaintiff isn’t named,” but that’s not quite right. The two issues — “per quod” and “of and concerning” — answer different questions.

“Of and Concerning” asks: Who is the statement about?

Every defamation claim must show that the statement was about the plaintiff — that a reasonable person would understand it refers to them. The plaintiff doesn’t have to be named explicitly; it’s enough if the reference is clear from context.

For example: “The owner of City Bistro launders money.”

If everyone knows P owns City Bistro, it’s “of and concerning” P, even without naming them. But if nobody can tell who owns the restaurant, P fails this element.

This issue is about identifiability — not about whether the meaning is obvious or hidden.

“Per Se vs. Per Quod” asks: How obvious is the defamatory meaning?

If the statement is plainly defamatory (“P is a thief”), it’s per se.

If it only becomes defamatory with extra facts (“P met X at a hotel” where X is married), it’s per quod.

So “of and concerning” is about who, while “per se/per quod” is about how the statement is defamatory. They’re distinct analytical steps — and separating them earns points on both law school and bar essays.

Slander and Slander Per Se

Slander requires proof of actual damage unless it falls into one of four Slander Per Se categories, where harm is presumed because the nature of the statement is obviously damaging.

The four Slander Per Se categories are:

Accusing the plaintiff of a serious crime involving moral turpitude.
Claiming the plaintiff has a loathsome or contagious disease.
Statements that injure the plaintiff’s business or professional reputation.
Allegations of sexual misconduct or unchastity.

If the statement fits into one of these categories, damages are presumed.

Constitutional Limitations: The Modern Overlay

Defamation law is unique because it overlaps with the First Amendment. The Supreme Court requires different fault standards depending on who the plaintiff is and whether the subject matter involves public concern.

Public Officials and Public Figures (New York Times v. Sullivan):

They must prove actual malice — that the defendant made the statement with knowledge of its falsity or reckless disregard for the truth.

Private Figures, Public Concern (Gertz v. Robert Welch, Inc.):

They must prove at least negligence regarding falsity, and actual injury. Presumed damages and strict liability are not allowed.

Private Figures, Private Concern (Dun & Bradstreet v. Greenmoss Builders):

They may recover presumed or punitive damages without showing actual malice — the Constitution provides less protection for purely private speech.

Always start by classifying:

Is the plaintiff public or private?
Is the subject matter public or private?
Those two answers control the fault and damages standard.

Defenses

Defamation has several powerful defenses, and you should always discuss them.

Truth: An absolute defense — if the statement is true, there is no defamation.

Privilege:

Absolute Privilege covers statements made during legislative, judicial, and executive proceedings.
Qualified Privilege covers statements made in good faith on matters of public or common interest, such as job references or news reporting. The privilege is lost if made with malice.

Opinion: Pure opinion — something that can’t be proven true or false — is protected. Saying “I think P is arrogant” is opinion; “P stole money” asserts a fact.

Consent: If the plaintiff consented to the publication, the claim fails.

The Hypo

D posts on social media: “P, the owner of City Bistro, launders money for criminals. I have proof.”

The post spreads quickly, causing customers to avoid the restaurant. The statement is false.

At common law, this is libel per se — it’s written, published to third parties, “of and concerning” P, and clearly defamatory on its face. Damages are presumed.

Under constitutional law, if P is a private figure and the post is about a private business, negligence suffices. If P were a public figure or the issue involved public corruption, actual malice would apply.

Defenses? D might argue truth or opinion, but saying “I have proof” turns the statement into a factual assertion.

Result: actionable defamation under both common law and modern standards.

Beyond Defamation: The Privacy Torts

Defamation protects reputation — how others see you.

The privacy torts protect dignity — your right to control your own personal information.

They often appear alongside defamation on exams.

The four privacy torts are:

Intrusion Upon Seclusion: Invading someone’s private space or affairs.
Public Disclosure of Private Facts: Publicizing truthful but private information that would offend a reasonable person.
False Light: Portraying someone misleadingly in a way that would be highly offensive.
Appropriation of Name or Likeness: Using someone’s identity for commercial gain without consent.

Remember: Defamation = reputation harm (falsehoods); Privacy = dignity harm (true but private or invasive).

Pro Tips

Always begin with the common law rule, then add constitutional fault standards.
Identify whether the statement is libel or slander, and whether it’s per se or per quod.
Separate “of and concerning” (identification) from “per quod” (contextual meaning).
Classify the plaintiff and subject matter to determine the fault standard.
Always mention truth, privilege, and opinion as defenses.
If the question involves intrusion or exposure, mention the privacy torts even if the defamation claim fails.