Slander/Defamation?

[quincy]

I understand that there does not have to be 3 people involved for a "third party" in a defamation claim. The Dean would not be considered a third person. The secretary would, however. Hence my original comment about potential problems if she read the email.

Unless this private communication between the student and the Dean were conveyed somehow to another person, like the secretary, there is not an actionable defamation claim. The personal confidential and conditionally privileged communication between the Dean and the student is not actionable. That IS the point. You have the faculty member and the coordinator, who apparently are unaware of the defamatory email, and you have the student who sent it, and you have the Dean. What the student says to the Dean is privileged. So you have no third party, only those accused of misconduct and the sort-of accuser, the student. The Dean is like the attorney. He may handle the matter, but he is not considered a third person in the defamation claim.

Does the communication potentially affect the faculty member and the coordinator? Yes. It depends on what the Dean decides to do with the information in the email. As with any misconduct reported about faculty, the Dean would have to decide what to do. But the person reporting the misconduct cannot be charged with defamation for reporting the misconduct, no matter how defamatory, if he reports it in good faith to a person with whom he can have a confidential and privileged communication.

I am not re-reading what I wrote, but I hope I am clearer this time.

Actually, I did re-read it and decided to add something else. Publication can only be made if it is made to the person defamed (faculty and coordinator, in this case) and one other person. The "defamed" people don't even know they have been defamed, however, as it was a private email. Without knowledge of the defamation, there can be no defamation claim.

 

[las365]

He - my son - is simply reporting and asking a question.

Well, no. Because first you said:

He told me that ... this was a way that he could - at the very least - try and stir up some dirt which would reflect badly on the faculty and coordinator.

So your son's intent was to harm the faculty and coordinator, not to ask a hypothetical question or warn of nasty rumors. This sort of behavior is not likely to help him either in school or afterward.

 

[BoredAtty]

I understand that there does not have to be 3 people involved for a "third party" in a defamation claim. The Dean would not be considered a third person. The secretary would, however. Hence my original comment about potential problems if she read the email.

Unless this private communication between the student and the Dean were conveyed somehow to another person, like the secretary, there is not an actionable defamation claim. The personal confidential and conditionally privileged communication between the Dean and the student is not actionable. That IS the point. You have the faculty member and the coordinator, who apparently are unaware of the defamatory email, and you have the student who sent it, and you have the Dean. What the student says to the Dean is privileged. So you have no third party, only those accused of misconduct and the sort-of accuser, the student. The Dean is like the attorney. He may handle the matter, but he is not considered a third person in the defamation claim.

Does the communication potentially affect the faculty member and the coordinator? Yes. It depends on what the Dean decides to do with the information in the email. As with any misconduct reported about faculty, the Dean would have to decide what to do. But the person reporting the misconduct cannot be charged with defamation for reporting the misconduct, no matter how defamatory, if he reports it in good faith to a person with whom he can have a confidential and privileged communication.

I am not re-reading what I wrote, but I hope I am clearer this time.

Actually, I did re-read it and decided to add something else. Publication can only be made if it is made to the person defamed (faculty and coordinator, in this case) and one other person. The "defamed" people don't even know they have been defamed, however, as it was a private email. Without knowledge of the defamation, there can be no defamation claim.

You're incorrect. (1) The dean is a third person for purposes of defamation. (2) The status of being a third person has nothing to do with whether the communication was privileged. (3) You don't know nearly enough about the facts to conclude that the email was privileged. (4) If a secretary read another person's private email, most likely that is not a publication to her.

 

[fairisfair]

Umm, I am not sure what you are saying.

If the secretary sees the email, then there is publication. The email would be seen before the email was sent to the Dean. You have a third person involved (even if this third person saw the communication second). If only the Dean sees the email, there is no actionable defamation because, 1. the communication is a private communication just between the student and the Dean about a matter that concerns them both, and 2. it would be privileged anyway.

For instance, if I speak to my attorney and say something defamatory about someone, and only he and I hear it - no problem. It is a privileged communication and there are only two of us involved anyway. It is both privileged and private. However, if I were to say something defamatory about someone to my attorney, and I said it in front of other people, no matter how privileged my communication with the attorney is, it could be actionable.

I could see how there could be argument against a third party publication, if you eliminate the Dean as the third party - but I don't see how the Dean would be considered a third party if only he saw the communication from the student. Even if a communication is ABOUT a third person, a third person is not privy to the communication in this case.

Have I confused both of us well enough now?? Just wait 'til I pull out the Family Immunity Doctrine.

Quincy, Quincy, Quincy, will you never learn??

you are STILL trying to win an argument with BA?? that will NEVER happen.

LOL You might as well just figure that if you are IN an argument with him, you are most likely wrong.

 

[quincy]

BoredAtty -
I know we haven't seen the email but I am trying to base everything on the limited amount of information we have available, which I understand may or may not be entirely accurate. And I am trying to ignore what the son told the mother (which indicates the student acted in a grossly irresponsible manner), and only base my answer on what the mother said the son supposedly wrote to the Dean.

First, I see why you consider the Dean the "third person" in this scenario. For matters of defamation, however, I believe that because of the Dean's position in the school and his responsibilities to look into possible misconduct by the faculty, he would not be considered a third person in a defamation suit, just as an attorney would not be considered a third person even if the attorney was told by his client something defamatory about someone. The Dean would (or should) protect the confidentiality of the information, and protect the student against retaliation for reporting or participating in an investigation of possible misconduct of faculty (although an investigation based on rumors going around campus is unlikely). The communication between the student and the Dean would be considered a private confidential and privileged communication between two people about two other people, who don't even know they are being discussed.

New York universities generally have policies in place to maintain the confidentiality of a complainant and efforts are made to safeguard the privacy and rights of all persons involved, as per the New York State Education Department's Office of the Professions. So the matter of a defamation action would really rest on whether anyone else saw the email sent to the Dean. And this is where the major problems the student would face lie.

Although email is intended as a private conversation, email from school computers can be monitored, and someone could have seen the email displayed on an open screen, and there can be interception (as in a secretary reading the missive, which would constitute publication - in one case, a man dictated a letter to his secretary accusing the addressee of larceny and the recipient of the letter brought a successful libel suit holding that publication took place at the time of dictation).

Right now, it seems, the coordinator and the faculty member do not know they have been potentially defamed. The information provided by the student, while libelous per se if he implied in any way nepotism and/or immoral or unethical behavior, is probably protected by privilege.

And, fairisfair, I am certainly aware it is journalist v. attorney here and I am liable to get creamed, but I am not quite ready to give up yet, because I think I am right (although I have already drafted a post in my head admitting defeat ).

 

[BoredAtty]

BoredAtty -

For matters of defamation, however, I believe that because of the Dean's position in the school and his responsibilities to look into possible misconduct by the faculty, he would not be considered a third person in a defamation suit, just as an attorney would not be considered a third person even if the attorney was told by his client something defamatory about someone.

If a client told his attorney something defamatory about another person, the attorney would be a "third person" for defamation purposes.

Although email is intended as a private conversation, email from school computers can be monitored, and someone could have seen the email displayed on an open screen, and there can be interception (as in a secretary reading the missive, which would constitute publication - in one case, a man dictated a letter to his secretary accusing the addressee of larceny and the recipient of the letter brought a successful libel suit holding that publication took place at the time of dictation).

There is a huge difference between dictating a defamatory letter to a secretary, and a secretary who reads the private emails of her boss. Generally, the defamatory information must have been published at least negligently to the third person. In the former situation, the secretary is purposely being told the information. In the latter situation, it would probably not be reasonable to expect that a secretary would read private emails not addressed to her, or that a person would leave his private emails open on a computer screen for all to see. The answer depends on all the facts, though.

 

[>Charlotte<]

It just seems to me that the secretary doesn't even come into the equation, as far as culpability on the sender's part, because the sender didn't tell the secretary. The sender told only the Dean. The Dean "told" the secretary by allowing her to read his e-mail. Is the sender responsible for what the Dean does with the information? And if that is correct, is the Dean committing libel?

This is a really interesting argument, by the way.

 

[quincy]

Actually, it has been held that repeating a libelous statement made by someone can be libelous, as well, in some cases - but Clt747, as far as we know, the secretary never read the email sent to the Dean. That was just a hypothetical. I do agree, however, that your arguments are interesting ones.

BoredAtty - I, surprise, surprise, am going to disagree with you on a couple of things again.

One: If the secretary reads the defamatory email, or if anyone sees the defamatory email, that IS publication. The defamatory comments about someone have been communicated to a third person, intentionally or unintentionally. So whether the letter is dictated or just read, it is still communicated.

Two: I can understand that an attorney could be a third person for the purposes of a defamation claim in an attorney/client relationship IF the client is defaming someone other than the person involved in the action the client hired the attorney for (for instance, if the client in a divorce case told his attorney falsely that the dry cleaner down the street steals pants and his attorney decides to go to a different dry cleaner as a result of this comment and the dry cleaner then sues the client for defamation) - but if the client told his attorney falsely that his wife is sleeping with the dry cleaner and that is why he is divorcing her, the attorney would NOT be the third person in this defamation action and the wife could not sue her husband for defamation for having told the attorney, because what was told to the attorney was privileged. I only read through them quickly, but I think Constand v. Cosby and Brody v. Montalbano and John Wagner v. Glenda Miskin says something about this. Still working on it

And I am not ready to cede the Dean as third person just yet.

 

[>Charlotte<]

I do agree, however, that your arguments are interesting ones.

Well, what I actually meant was that watching you guys argue about this was interesting, but thanks for answering my question.

 

[quincy]

Ha! Just wait for a few more rounds when I very humbly admit defeat. It will be 0 for the journalist and, geez, WAY too many for the BoredAtty. But I am really prepping for a win soon!

 

[Quaere]

To determine if someone has a claim, you have to be sure you can satisfy the elements of the claim. Once this is accomplished, you have to consider the various defenses available. If any of the defenses cover the defendant, his actions were justified and you do NOT have a claim.

The elements of defamation in NY are as follows:
(1) a false and defamatory statement of fact regarding the plaintiff;
(2) published to a third party by the defendant;
(3) fault on the part of the defendant
(4) resulting in injury to the plaintiff.

To prove the first element in Jr.s case, the plaintiff would have to show that:
A. The “hypothetical” was a transparent means of making accusations against specific people.
B. The Dean would necessarily have known whom Jr. was accusing and what he was accusing them of.
C. The hypothetical contained statements of fact.

The following “hypothetical” posed to the Dean would meet all three of those requirements: “Suppose I told you that a particular biology teacher has been supplying students with crystal meth. Suppose I also told you that this fact has been reported to the head of the science department, but because the head of the dept. is this teacher’s brother, the reports were covered up.”

In such a hypothetical, the Dean understands which teacher is being accused of illegal activity. The first element has been met (a false and defamatory statement of fact regarding the plaintiff) assuming a jury agrees Jr.s statements qualify as statements of FACT.

The second element (published to a third party by the defendant) was met when Jr. sent the email to anyone other than the accused and someone other than the accused opened it. For the purpose of satisfying THIS ELEMENT, it makes no difference who the third party was, whether the communication was privileged, or whether the individual went on to share the mail with others. For the record, the ORIGINAL defamer is always liable for the damages caused by the spreading of the defamation, even if he did nothing to spread it himself.

The third element (fault on the part of the defendant) is about whether Jr. acted reasonably in making the accusations. Jr. had a duty to those he was speaking about. He should not have made statements of a fact about something unless he can prove it is true. Again, it is for a jury to decide whether he took reasonable care before making damaging statements about others.

The fourth element (resulting in injury to the plaintiff) is usually easy to meet once the three prior elements have been met.

NOW, it's time to consider defenses.

PRIVILAGE is a defense to defamation. THIS is where you get into the whole issue of whether the email falls into the category of privileged communications. In the example given, it would be hard to claim privilege. The accusations involved criminal activity and the report should have been made to the police, not the employer. The police report would definitely been privilaged as long as it wasn't a deliberate false report.

If Jr.s accusations were limited to comments about the teacher’s competence, they may be protected as privileged, as they were properly made to the Dean.

BUT, since Jr. is presumably unqualified to make any credible statements of fact about a teacher’s professional skills, such statements would be considered “OPINION” rather than FACT anyway.

Whitby, I hope the above information can help you determine Jr.s level of risk. As you see, there are many factors to consider and we can’t give you any concrete answers without seeing the email.

 

[Quaere]

The Dean "told" the secretary by allowing her to read his e-mail. Is the sender responsible for what the Dean does with the information?

Not if the communication to the Dean was privileged. If it was privileged and somehow it leaks out of the Dean’s office, the Dean is liable.

Dr.s, lawyers, clergy, etc. have office staff that see confidential communications that are NOT addressed to them. The staff is bound by the same confidentiality restrictions as their boss is.

If instead of writing the Dean, Jr. sent a letter to a classmate, Jr. IS liable for the spread of the info. Jr. had no reason to believe the classmate would protect the communication but he chose to tell the classmate anyway.

 

[quincy]

Quaere, I must take exception to your saying, "The ORIGINAL defamer is always liable for damages caused by the spreading of the defamation, even if he did nothing to spread it himself." Not true. There are cases where one who repeats a defamatory statement has been found to have responsibility for the defamation, just as the original defamer - see Cianci v New Times Pub. Co and Cubby, Inc. v CompuServe, Inc. and there is a California case where a man photographed with Robert Kennedy the night of his assassination sued the Globe, a tabloid newspaper, for summarizing allegations made years before - this resulted in a $1.2 million judgment against the Globe. In order to be held liable, however, the "repeat defamer" must have taken a responsible part in the publication (The Communications Decency Act generally protects ISPs from liabillty, for instance).

Journalists have also been found responsible for repeating errors printed elsewhere - which is why facts are checked prior to publication. (I don't always check my facts on this forum, obviously, but that is because the pay, quite frankly, sucks )

 

[BoredAtty]

To determine if someone has a claim, you have to be sure you can satisfy the elements of the claim. Once this is accomplished, you have to consider the various defenses available. If any of the defenses cover the defendant, his actions were justified and you do NOT have a claim.

The elements of defamation in NY are as follows:
(1) a false and defamatory statement of fact regarding the plaintiff;
(2) published to a third party by the defendant;
(3) fault on the part of the defendant
(4) resulting in injury to the plaintiff.

To prove the first element in Jr.s case, the plaintiff would have to show that:
A. The “hypothetical” was a transparent means of making accusations against specific people.
B. The Dean would necessarily have known whom Jr. was accusing and what he was accusing them of.
C. The hypothetical contained statements of fact.

The following “hypothetical” posed to the Dean would meet all three of those requirements: “Suppose I told you that a particular biology teacher has been supplying students with crystal meth. Suppose I also told you that this fact has been reported to the head of the science department, but because the head of the dept. is this teacher’s brother, the reports were covered up.”

In such a hypothetical, the Dean understands which teacher is being accused of illegal activity. The first element has been met (a false and defamatory statement of fact regarding the plaintiff) assuming a jury agrees Jr.s statements qualify as statements of FACT.

The second element (published to a third party by the defendant) was met when Jr. sent the email to anyone other than the accused and someone other than the accused opened it. For the purpose of satisfying THIS ELEMENT, it makes no difference who the third party was, whether the communication was privileged, or whether the individual went on to share the mail with others. For the record, the ORIGINAL defamer is always liable for the damages caused by the spreading of the defamation, even if he did nothing to spread it himself.

The third element (fault on the part of the defendant) is about whether Jr. acted reasonably in making the accusations. Jr. had a duty to those he was speaking about. He should not have made statements of a fact about something unless he can prove it is true. Again, it is for a jury to decide whether he took reasonable care before making damaging statements about others.

The fourth element (resulting in injury to the plaintiff) is usually easy to meet once the three prior elements have been met.

NOW, it's time to consider defenses.

PRIVILAGE is a defense to defamation. THIS is where you get into the whole issue of whether the email falls into the category of privileged communications. In the example given, it would be hard to claim privilege. The accusations involved criminal activity and the report should have been made to the police, not the employer. The police report would definitely been privilaged as long as it wasn't a deliberate false report.

If Jr.s accusations were limited to comments about the teacher’s competence, they may be protected as privileged, as they were properly made to the Dean.

BUT, since Jr. is presumably unqualified to make any credible statements of fact about a teacher’s professional skills, such statements would be considered “OPINION” rather than FACT anyway.

Whitby, I hope the above information can help you determine Jr.s level of risk. As you see, there are many factors to consider and we can’t give you any concrete answers without seeing the email.

An informative and detailed post. Also, you corrected a mistake of mine - it is the third element, not the second, that is judged by at least a negligence standard.

 

[Quaere]

Quincy you wrote:

Publication can only be made if it is made to the person defamed (faculty and coordinator, in this case) and one other person.

This is not true. Publication takes place when someone other than the writer or the subject of the defamation sees or hears the defamatory statement. The victim’s reputation can be destroyed long before he knows what happened to him. Obviously, the victim can’t file a claim until he finds out SOMETHING happened, but the victim’s knowledge has no bearing on whether publication was made.

The "defamed" people don't even know they have been defamed, however, as it was a private email. Without knowledge of the defamation, there can be no defamation claim.

True, but if and when the victims discover the defamation, they can sue. Edited to read: True, but since the publication is concealed from the alleged victims, the SOL doesn't begin to run till they find out about it. In theory, Jr. could be sued ten years from now. I don't see any of these teachers filing suit at any time, I'm just pointing out that in some ways, the private nature of the publication works against Jr.

Quaere, I must take exception to your saying, "The ORIGINAL defamer is always liable for damages caused by the spreading of the defamation, even if he did nothing to spread it himself." Not true.

Is so is so! I didn’t say the original defamer is the ONLY one liable. I said, the original defamer is ALWAYS liable. The victim may sue any or all of the parties that were negligent in communicating the lie.

There are cases where one who repeats a defamatory statement has been found to have responsibility for the defamation, just as the original defamer - see Cianci v New Times Pub. Co and Cubby, Inc. v CompuServe, Inc. and there is a California case where a man photographed with Robert Kennedy the night of his assassination sued the Globe, a tabloid newspaper, for summarizing allegations made years before - this resulted in a $1.2 million judgment against the Globe. In order to be held liable, however, the "repeat defamer" must have taken a responsible part in the publication (The Communications Decency Act generally protects ISPs from liabillty, for instance).

I am well aware of all of the above. EVERYONE has a duty to take care when speaking about others. An individual is not excused from liability simply because he claims he is not the first person to tell the lie.

I don't always check my facts on this forum, obviously, but that is because the pay, quite frankly, sucks

The benefit package here leaves something to be desired as well. Good to see you retain your sense of humor during these debates.