Accused of Online Defamation
My question involves defamation in the state of: New Mexico
Thank you in advance for the help, This is going to be a long winded message...
Here is what happened:
My roommate (good friend) has not been doing dishes(the ones I bought). Instead he leaves them in the sink, not for an hour or two but for days at a time. We both go to a university here in NM and live on campus and we both have many common friends. I have asked and demanded that the dishes be cleaned thru face to face contact, text, email, facebook, notes and the like to no avail. so I posted the following:
"hey everyone these dishes are 4 days old and yes thats grease. If you could please tell (insert name here) to wash them. This not a once or twice thing. This is EVERY TIME he uses his dishes. He does not think it is gross to leave them dirty and refuses to wash them. Thank you all for your help. It is just ridiculous.(including a picture of the dishes with the grime and grease)"
He got mad at this and told me that his mom wanted to come down and talk to the university about writing me up for slander(in this case libel). I have done research on the common law both general and private persons but can not find anything from the New Mexico law books about it (this is why I came here).
If you could help me on finding the information about New Mexico Laws on Defamation i would greatly appreciate it.
Here is my defense so far:
-there was no lies in what i had posted (Actual malice)
-his reputation was not tainted by the post(no one un-friended him or thought of him differently as he has not been cleaning his dishes all semester)
-The post was taken down within a 3 hour window
-The post was meant to be informative and not hurt anyone by it
-It is based on sanitation
-the university does not have any defamation laws
-the 10 day "grievance period" has passed for non-academic problems.
-it does not fall under the "harassment policy" of the university.
please let me know what I am missing but as of now it seems that I was alright to post what I did. I am a good student who does not want to get in trouble over something like this is all.
here is what i have found for common law:
If you believe you are have been "defamed," to prove*it you*usually have to show there's been a statement that is all of the following:
published
false
injurious
unprivileged.
Let's look at each of these elements in detail.
1.*First,*the*"statement" can be spoken, written, pictured, or even gestured. Because written statements last longer than spoken statements, most courts, juries, and insurance companies consider libel more harmful than slander.
2. "Published" means that a third party heard or saw the statement -- that is, someone other than the person who made the statement or the person the statement was about. "Published" doesn't necessarily mean that the statement was printed in a book -- it just needs to have been made public through television, radio, speeches, gossip, or even loud conversation. Of course, it could also have been written in magazines, books, newspapers, leaflets, or on picket signs.
3. A defamatory statement must be false*-- otherwise it's not considered damaging. Even terribly mean or disparaging things are not defamatory if the shoe fits. Most opinions don't count as defamation because they can't be proved to be objectively false.*For instance, when a reviewer says, "That was the worst book I've read all year," she's not defaming the author, because the statement can't be proven to be false.
4. The statement must be "injurious." Since the whole point of defamation law is to take care of injuries to reputation, those suing for defamation must show how their reputations were hurt by the false statement -- for example, the person lost work; was shunned by neighbors, friends, or family members; or was harassed by the press. Someone who already had a terrible reputation most likely won't collect much in a defamation suit.
5. Finally, to qualify as a defamatory statement, the offending statement must be "unprivileged." Under some circumstances, you cannot sue someone for defamation even if they make a statement that can be proved false. For example, witnesses who testify falsely in court or at a deposition can't be sued. (Although witnesses who testify to something*they know is false could*theoretically be prosecuted for perjury.) Lawmakers have decided that in these and other situations, which are considered "privileged," free speech is so important that the speakers should not be constrained by worries that they will be sued for*defamation.*Lawmakers themsleves also enjoy this privilege: They aren't liable for statements made in the legislative chamber or in official materials, even if they say or write things that would otherwise be defamatory.
"Actual malice" means that the person who made the statement knew it wasn't true, or didn't care whether it was true or not and was reckless with the truth --* for example, when someone has doubts about the truth of a statement but does not bother to check further before publishing it.
Specific requirements that a plaintiff must prove in order to recover in a defamation action differ from jurisdiction to jurisdiction. Under the Restatement (Second) of Torts, which is drafted by the American Law Institute and has been influential among state courts, a plaintiff must prove four elements.
1. First, the plaintiff must prove that the defendant made a false and defamatory statement concerning the plaintiff.
2. Second, the plaintiff must prove that the defendant made an unprivileged publication to a third party.
3. Third, the plaintiff must prove that the publisher acted at least negligently in publishing the communication.
4. Fourth, in some cases, the plaintiff must prove special damages.
Defamatory Statements
One essential element in any defamation action is that the defendant published something defamatory about the plaintiff. The Restatement defines a communication as defamatory "if it tends so to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating with him." Examples of defamatory statements are virtually limitless and may include any of the following:
A communication that imputes a serious crime involving moral turpitude or a felony
A communication that exposes a plaintiff to hatred
A communication that reflects negatively on the plaintiff's character, morality, or integrity
A communication that impairs the plaintiff's financial well-being
A communication that suggests that the plaintiff suffers from a physical or mental defect that would cause others to refrain from associating with the plaintiff
One question with which courts have struggled is how to determine which standard should govern whether a statement is defamatory. Many statements may be viewed as defamatory by some individuals, but the same statement may not be viewed as defamatory by others. Generally, courts require a plaintiff to prove that he or she has been defamed in the eyes of the community or within a defined group within the community. Juries usually decide this question.
Courts have struggled to some degree with the treatment of statements of opinions. At common law, statements of opinion could form the basis of a defamation action similar to a statement of pure fact. Generally, if a statement implies defamatory facts as the basis of the opinion, then the statement may be actionable.
Publication Requirement
Another requirement in libel and slander cases is that the defendant must have published defamatory information about the plaintiff. Publication certainly includes traditional forms, such as communications included in books, newspapers, and magazines, but it also includes oral remarks. So long as the person to whom a statement has been communicated can understand the meaning of the statement, courts will generally find that the statement has been published.
Meaning of a Communication
In some instances, the context of a statement may determine whether the statement is defamatory. The Restatement provides as follows: "The meaning of a communication is that which the recipient correctly, or mistakenly but reasonably, understands that it was intended to express." Courts generally will take into account extrinsic facts and circumstances in determining the meaning of the statement. Thus, even where two statements are identical in their words, one may be defamatory while the other is not, depending on the context of the statements.
Reference to the Plaintiff
In a defamation action, the recipient of a communication must understand that the defendant intended to refer to the plaintiff in the communication. Even where the recipient mistakenly believes that a communication refers to the plaintiff, this belief, so long as it is reasonable, is sufficient. It is not necessary that the communication refer to the plaintiff by name. A defendant may publish defamatory material in the form of a story or novel that apparently refers only to fictitious characters, where a reasonable person would understand that a particular character actually refers to the plaintiff. This is true even if the author states that he or she intends for the work to be fictional.
In some circumstances, an author who publishes defamatory matter about a group or class of persons may be liable to an individual member of the group or class. This may occur when: (1) the communication refers to a group or class so small that a reader or listener can reasonably understand that the matter refers to the plaintiff; and (2) the reader or listener can reasonably conclude that the communication refers to the individual based on the circumstances of the publication.
A defendant in a defamation case may raise a variety of defenses. These are summarized as follows:
Truth
The common law traditionally presumed that a statement was false once a plaintiff proved that the statement was defamatory. Under modern law, a plaintiff who is a public official or public figure must prove falsity as a prerequisite for recovery. Some states have likewise now provided that falsity is an element of defamation that any plaintiff must prove in order to recover. Where this is not a requirement, truth serves as an affirmative defense to an action for libel or slander.
A statement does not need to be literally true in order for this defense to be effective. Courts require that the statement is substantially true in order for the defense to apply. This means that even if the defendant states some facts that are false, if the "gist" or "sting" of the communication is substantially true, then the defendant can rely on the defense.
Consent
Where a plaintiff consents to the publication of defamatory matter about him or her, then this consent is a complete defense to a defamation action.
Absolute Privileges
Some defendants are protected from liability in a defamation action based on the defendant's position or status. These privileges are referred to as absolute privileges and may also be considered immunities. In other words, the defense is not conditioned on the nature of the statement or upon the intent of the actor in making a false statement. In recognizing these privileges, the law recognizes that certain officials should be shielded from liability in some instances.
Absolute privileges apply to the following proceedings and circumstances:
(1) judicial proceedings
(2) legislative proceedings
(3) some executive statements and publications
(4) publications between spouses
(5) publications required by law
Conditional Privileges
Other privileges do not arise as a result of the person making the communication, but rather arise from the particular occasion during which the statement was made. These privileges are known as conditional, or qualified, privileges. A defendant is not entitled to a conditional privilege without proving that the defendant meets the conditions established for the privilege. Generally, in order for a privilege to apply, the defendant must believe that a statement is true and, depending on the jurisdiction, either have reasonable grounds for believing that the statement was true or not have acted recklessly in ascertaining the truth or falsity of the statement.
Conditional privileges apply to the following types of communications:
A statement that is made for the protection of the publisher's interest
A statement that is made for the protection of the interests of a third person
A statement that is made for the protection of common interest
A statement that is made to ensure the well-being of a family member
A statement that is made where the person making the communication believes that the public interest requires communication of the statement to a public officer or other official
A statement that is made by an inferior state officer who is not entitled to an absolute privilege
One of the more difficult issues in a defamation case focuses on whether the defendant is at fault for publishing defamatory comments. Common law rules created strict liability on the part of the defendant, meaning that a defendant could be liable for defamation merely for publishing a false statement, even if the defendant was not aware that the statement was false. Cases involving an interpretation of the First Amendment later modified the common law rules, especially in cases involving public officials, public figures, or matters of public concern.
Common Law Rules
At common law, once a plaintiff proved that a statement was defamatory, the court presumed that the statement was false. The rules did not require that the defendant know that the statement was false or defamatory in nature. The only requirement was that the defendant must have intentionally or negligently published the information.
Private Persons
Where speech is directed at a person who is neither a public official nor a public figure, the case of Gertz v. Robert Welsh, Inc. (1974) and subsequent decisions have set forth different standards. The Court in Gertz determined that the actual malice standard established in New York Times v. Sullivan should not apply where speech concerns a private person. However, the Court also determined that the common law strict liability rules impermissibly burden publishers and broadcasters.
Under the Restatement (Second) of Torts, a defendant who publishes a false and defamatory communication about a private individual is liable to the individual only if the defendant acts with actual malice (applying the standard under New York Times v. Sullivan) or acts negligently in failing to ascertain whether a statement was false or defamatory.
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Re: Accused of Online Defamation
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