Defamation - Conditional Privilege in Louisiana (Part One)

Similar documents
Chapter 293. Defamation Act Certified on: / /20.

Libel and Slander - Limitation of Actions - Single Publication Rule

Case 2:15-cv ER Document 152 Filed 10/16/18 Page 1 of 7 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA O R D E R

Verbal Abuse and the Aggressor Doctrine

Washoe Tribe of Nevada and California. Law & Order Code TITLE 3 TORTS. [Last Amended 10/1/04. Current Through 2/3/09.]

Procedure - Appellate Jurisdiction, Court of Appeal

Jurisdiction in Personam Over Nonresident Corporations

ELEMENTS OF LIABILITY AND RISK

Torts - Personal Injury or Wrongful Death Suits by Child or Administrator Against Parent

DEFAMATION ACTIONABLE PER SE PRIVATE FIGURE MATTER OF PUBLIC CONCERN PRESUMED DAMAGES 1

1. Under what theory, or theories, if any, might Patty bring an action against Darby? Discuss.

How to Use Torts Tactically in Employment Litigation

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS TYLER DIVISION

This opinion will be unpublished and may not be cited except as provided by Minn. Stat. 480A.08, subd. 3 (2016).

Torts - Duty of Occupier to Social Guests

Court of Common Pleas of Pennsylvania, Allegheny County. Reunion Industries Inc. v. Doe 1. No. GD March 5, 2007

GOL : New York Court of Appeals Adopts Aggregation Method in Crediting Settlements to Verdicts Assessed Against Non- Settling Defendants

Answer A to Question Statements of Opinion May Be Actionable in a Defamation Action

Civil Code and Related Subjects: Negotiable Instruments and Banking

Torts - Liability of Automobile Owner for Driver's Negligence

Measures of Damages - Vendor's Breach of Bond for Deed - Fruits and Revenue of the Land

TORT LAW. By Helen Jordan, Elaine Martinez, and Jim Ponce

DEFAMATION INSTRUCTIONS Introduction

Reading from Radio Script as Libel

Criminal Procedure - Three-Year Prescription on Indictments

DEFAMATION--SLANDER ACTIONABLE PER QUOD--PRIVATE FIGURE--MATTER OF PUBLIC CONCERN. 1

PLEASE NOTE. For more information concerning the history of this Act, please see the Table of Public Acts.

Intentional Torts. What Is a Tort? Tort Recovery

Sales - Automobiles - Bona Fide Purchaser Doctrine

Liability of Broadcasters

Res Judicata Personal Injury and Vehicle Property Damage Arising from a Single Accident

Criminal Law - Intoxication and Specific Intent in Homicide Prosecution

THE DEFAMATION BILL, 2001 EXPLANATORY NOTE. (These notes form no part of the Bill but are intended only to indicate its general purport)

Price Fixing Agreements --- Patented Products

IN THE COURT OF COMMON PLEAS IN THE STATE OF DELAWARE IN AND FOR KENT COUNTY

IN THE DISTRICT COURT FOR ROGERS COUNTY STATE OF OKLAHOMA PETITION

Rendition of Judgements

Torts - Liability of Owner for the Negligent Driving of Automobile Thief

Civil Procedure - Filing Suit In Court of Incompetent Jurisdiction

Contracts - Pre-Existing Legal Duty - Louisiana Law

The Current State and Trajectory of U.S. Conflict of Laws

Mineral Rights - Recital of Oustanding Mineral Rights in a Deed of Sale as a Reservation - Error of Law

HYDERALLY & ASSOCIATES, P.C.

Animals - Stock at Large - Duty of Owner - Parish Ordinances - Article 2321 of the Civil Code

Security Devices - Personal Liability of Third Party Purchasers Under Revised Statutes 9:5362

COUNSEL JUDGES OPINION

Criminal Law - Misappropriation of Funds of a Commercial Partnership by One of the Partners

DEFAMATION--SLANDER ACTIONABLE PER QUOD--PRIVATE FIGURE--NOT MATTER OF PUBLIC CONCERN. 1

Torts: Recent Developments

Practice and Procedure--Splitting Causes of Action- -Mistake of Law--Mistake of Fact (White v. Adler, 255 App. Div. 580 (1st Dept.

Corporate Law - Restrictions on Alienability of Stock

September 1,2009. Carl Wayne Koealer v. Steven F. Green, et als Hanover Circuit Court Case Number CL

Public Law: Discharge in Bankruptcy

Louisiana Practice - Deficiency Judgment Act - Applicability to Surety on Mortgage Note

SUPREME COURT OF QUEENSLAND

Chapter 6 Torts Byron Lilly De Anza College Byron Lilly De Anza College

Torts. Louisiana Law Review. Wex S. Malone. Volume 25 Number 1 Symposium Issue: Louisiana Legislation of 1964 December Repository Citation

Criminal Law - Assault with an Unloaded Firearm

Torts - Right of Way at Intersections in Louisiana - Preemption Doctrine

(d) an amplifier or loudspeaker transmitting a tape recording or other recording;

PLAINTIFF S ORIGINAL PETITION

State v. Barnes - Procedural Technicalities or Justice?

Criminal Law - Simple Rape as a Responsive Verdict Under an Indictment for Aggravated Rape

IN THE HIGH COURT OF JUSTICE DAVID PENN. and

Conflict of Laws - Jurisdiction Over Nonresidents - Constructive Service in Tort Action Arising Outside the State

States - Amenability of State Agency to Suit

Ch 10 Practice Test

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT ************

Practice and Procedure - Intervention by Insured in Actions Brought Under the Direct Action Statute

Basics of Internet Defamation. Defamation in the News

Status of Unendorsed Instrument Drawn to Maker's Own Order

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAII ) ) ) ) ) ) ) ) ) ) ) ) ) )

Relation Back of Consortium Claims: A Search for Facts and Notice

Criminal Law - Bribery of a Public Officer

Torts - Liability of Joint Tort-feasors

An Act to modify the general law relating to the tort of defamation and for other purposes.

Public Law: Bankruptcy

Strict Liability Versus Negligence: An Economic Analysis of the Law of Libel

Torts - Liability for Damage Caused by Trespassing Cattle

The Libel and Slander Act

Prescription of Movables - Meaning of "Stolen" in Articles 3506 and 3507, Louisiana Civil Code of 1870

Intentional Torts. What Is a Tort? Tort Recovery

c 237 Libel and Slander Act

Employment Contracts - Potestative Conditions

Retrospective Effect of an Overruling Decision

Federal Rules of Civil Procedure - Diversity of Citizenship - Third Party Practice

The Libel and Slander Act

Supplement No. 7 published with Gazette No. 9 dated 6 th May, THE HUMAN TISSUE TRANSPLANT LAW, 2013 (LAW 15 OF 2013)

Exceptions. Louisiana Law Review. Aubrey McCleary

CAUSE NO. COMES NOW, Plaintiff, Colin Shillinglaw, and files this Original Petition, complaining

The Effect of the Adoption of the Proposed Uniform Commercial Code on the Negotiable Instruments Law of Louisiana - The Doctrine of Price v.

1 of 1 DOCUMENT. SHERYL JOHNSON-TODD, Appellant V. JOHN S. MORGAN, Appellee NO CV COURT OF APPEALS OF TEXAS, NINTH DISTRICT, BEAUMONT

Follow this and additional works at: Part of the Law Commons

The Article Survival Action: A Probate or Non-Probate Item

STATE OF MICHIGAN COURT OF APPEALS

Incompetent Persons - Liability of Curator - Custodian Distinguished

Judicial Mortgage Rights: Recordation of Non- Executory Judgments

Chapter 6. Disparagement of Property 8/3/2017. Business Torts and Online Crimes and Torts. Slander of Title Slander of Quality (Trade Libel) Defenses

Private Law: Torts. Louisiana Law Review. William E. Crawford Louisiana State University Law Center

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT **********

Transcription:

Louisiana Law Review Volume 6 Number 2 Symposium Issue: The Work of the Louisiana Supreme Court for the 1943-1944 Term May 1945 Defamation - Conditional Privilege in Louisiana (Part One) Martha E. Kirk Morris D. Rosenthal Repository Citation Martha E. Kirk and Morris D. Rosenthal, Defamation - Conditional Privilege in Louisiana (Part One), 6 La. L. Rev. (1945) Available at: http://digitalcommons.law.lsu.edu/lalrev/vol6/iss2/11 This Comment is brought to you for free and open access by the Law Reviews and Journals at LSU Law Digital Commons. It has been accepted for inclusion in Louisiana Law Review by an authorized editor of LSU Law Digital Commons. For more information, please contact kayla.reed@law.lsu.edu.

1945] COMMENTS thereon. The importance of this question lies in the substantial advantages of having one's name freed from accusation" and in the provision of Article 9 that any prosecution which is so prescribed may be dismissed and may not thereafter be revived. GORDON L. RICHEY DEFAMATION-CONDITIONAL PRIVILEGE IN LOUISIANA It The Louisiana law of defamation springs from Article 2315 of the Louisiana Civil Code, which provides: "Every act whatever of man which causes an injury to another, shall oblige him by whose fault it happened to repair it... Despite the obvious leeway which this article gives the court, the Louisiana courts have developed a law of defamation closely resembling that of common law jurisdictions. In Louisiana, when the defendant has defamed the social, business, or moral interests or character of another, he is liable to the injured party without further proof of damage or bad faith. 2 If, however, he can show that the occasion was one in which the value to society that the communication be made was great enough to justify the damage caused, the law allows a privilege to the publisher, relieving him entirely from civil liability. These privileges are of two types-absolute and conditional. An absolute privilege exists in certain situations where the public interest in unhampered freedom of speech is so strong that the courts feel that no liability should be imposed under any circumstances. This privilege is limited to judges, legislators, and certain executives acting in their respective official capacities. fn other situations the courts grant only limited protection to the 35. For one of these advantages, see State v. Gunter, 188 La. 314, 177 So. 60 (1937). tthis is the first of two installments on this subject. Included are the privileges to defame for self protection, for common interest, for the protection of a third party, and for the protection of the recipient. The privilege of fair comment, the privilege to defame for the protection of the public, together with the topic of abuse of the conditional privilege to defame will be dealt with in the concluding installment of this comment which will be published in the forthcoming issue of the Louisiana Law Review. 1. Art. 2315, La. Civil Code of 1870. 2. Miller v. Holstein, 16 La. 389 (1839); Sotorno v. Fourichon, 40 La. Ann. 423, 4 So. 71 (1888); Fellman v, Dreyfous, 47 La. Ann. 907, 17 So. 422 (1895).

LOUISIANA LAW REVIEW [Vol. VI defendant. While recognizing the social value of allowing him to make what would otherwise be defamatory statements, they nevertheless are unwilling to accord him an indefeasible privilege and they prefer to determine in each instance whether his conduct has been excessive. In such cases the term conditional privilege is employed. This conditional privilege may be defeated if the communication was made with knowledge of its falsity or if it was made under circumstances showing that the defendant was prompted by an improper motive. It is the purpose of this comment to point out the nature and extent of the conditional privilege in Louisiana. Self Protection It is established that every man is privileged to defame another in protection of some substantial interest in his own social or economic welfare. It must appear not only that the communication was necessary for his protection, but also that the publisher reasonably believed the recipient to be in a position to help him. There must be some legal connection between the defendant's statement and the interest which he seeks to protect. A person cannot, under the guise of protecting his own business defame another who has in no way injured or threatened to injure him. Thus a privilege was denied where defendant sent a circular letter to his patrons asking that they "show no favors" to plaintiff, a former employee of defendant who was then in the employ of another concern engaged in the same type of business. 3 The letter contained implications that plaintiff had been discharged for some unexplained reason. The latter had in no way represented that he was still in the employ of the defendant, nor had he otherwise attempted to cheat or defraud him. The case of Mielly v. Soule 4 affords an illustration of a situation where the court felt that there was sufficient connection between the act complained of and the defamatory statement. In that case plaintiff business college had published a circular letter setting forth many claims of its own superiority of instruction methods and facilities. In this letter, defendant's business school had been greatly ridiculed. Defendant, in retaliation, published a small pamphlet which might be regarded as defamatory of plaintiff. The court held that defendant's action was privileged, 3. Warner v. Clark, 45 La. Ann. 863, 13 So. 203 (1893). 4. 49 La. Ann. 800, 21 So. 593 (1897),

1945] COMMENTS being only a proper retaliatory measure made for the security of his business. 5 An employer has been held privileged to make reasonable investigations of employees or customers who are suspected of theft, 5 forgeryj or other dishonest actions in connection with the defendant's business. In the case of Gilliland v. Feibleman' the plaintiff alleged that defendant had publicly accused her of stealing three yards of dress material while employed in the store in which defendant was manager. The court, after finding that the investigation had been conducted in a quiet and orderly manner, said: "It is properly and peculiarly the duty of the responsible or directing head of any business to question its employees regarding the property of the concern or the conduct of its affairs." A person is also privileged to defend himself from a slanderous attack made against his personal character." 0 The common law qualifies this privilege by saying that the statement must be made reasonably and without malice." Louisiana courts however have uniformly refused to allow recovery by either party in cases of mutual abuse. The rule was well stated by the court in Kenner v. Miller: 2 "The principle seems to be well embedded in our jurisprudence that in suits of this kind where the parties have engaged in mutual vituperation and abuse at each other, they are both wrong, and neither can recover from the other." Protection of Common Interest An occasion is conditionally privileged when the publisher and the recipient have a common interest which will be protected or furthered by the communication. Again, the interest must be 5. It appears in the case that the court was not satisfied that defendant's remarks were actually defamatory of plaintiff. The decision, however, was based upon both grounds. 6. Gilliland v. Feibleman's Inc., 161 La. 24, 108 So. 112 (1926). 7. Raggio v. Morgan's Louisiana and Texas R. & S. S. Co., 148 La. 209, 86 So. 747 (1920). 8. 161 La. 24, 108 So. 112 (1926). 9. 161 La. 24, 27, 108 So. 112, 113 (1926). A similar privilege has been accorded when the defendant has defamed in 'defense of the quality of his product. Lynch v. Febiger, 39 La. Ann. 336, 1 So. 690 (1887). 10. Bloom v. Crescioni, 109 La. 667, 33 So. 724 (1903). 11. Preston v. Hobbs, 161 App. Div. 363, 146 N.Y. Supp. 419 (1914); Craig v. Wright, 182 Okla. 68, 76 P. (2d) 248 (1938); Wettach, Recent Developments in Newspaper Libel (1928) 13 Minn. L. Rev. 21, 31-34, 12. 196 So. 535, 537 (La. App. 1940).

LOUISIANA LAW REVIEW [Vol. VI substantial, and the publisher must believe that the recipient is a proper party to receive the publication. In the case of Oakes v. Walther 18 the supreme court approved the rule as stated by Newell: "A communication made in good faith, upon any subject matter in which the party has an interest or in reference to which he has a duty, either legal, moral or social, if made to a person having a corresponding interest or duty, is qualifiedly privileged."" In that case defendant, a physician, examined plaintiff at the request of certain attorneys employed in litigation to which plaintiff was a party. The defendant's unfavorable report of the plaintiff's mental condition to the attorneys was held to be privileged. This privilege of protection of a common interest is most commonly used where the interest is of a business or financial nature. It has been extended however to include cases in which interests of a non-pecuniary nature are involved. For example, in Berot v. Porte, 15 where plaintiff had applied for membership members that plaintiff was of Negro blood. In other cases, a defendant has been held privileged to make derogatory statements of plaintiff to the sister-in-law who was caring for defendant's child where the statements concerned the child's welfare. 16 Similarly a mother has been held privileged to address the principal of a public school concerning the moral fitness of her child's instructor.1 7 Protection of Third Persons In the two situations last discussed the court might with equal ease have found that the defamatory statements made to the sister-in-law or school principal were for the protection of a third person, the defendant's child, in whom the defendant had a proper family interest. It is generally held that one member of a family group may make defamatory statements to third persons for the protection of another member of the family. The interest protected here may be the general welfare of the other family member, as in the cases last cited. Also the statement may be made for the protection of some specific financial interest of the family member, as in Haney v. Trost. 8 In this latter case 13. 179 La. 365, 154 So. 26 (1934). 14. Newell, Slander and Libel (3 ed. 1914) 479. 15. 144 La. 805, 81 So. 323 (1919). 16. State v. Lambert, 188 La. 968, 178 So. 508 (1938), 17. Simms v. Clark, 194 So. 123 (L. App. 1940), 18. 34 La. Ann. 1146 (1882).

1945] 4COMMENTS a husband was held privileged to address statements defamatory of the plaintiff to the head of a company in which his wife was a stockholder. Where the third person whose interest the defendant seeks to protect is not related to the defendant, the latter may still be privileged to defame for the protection of such person. In these cases, however, the courts attempt to exclude the officious intermeddler. For this reason it is important to determine whether or not the information was given in response to an inquiry by some person having a legitimate interest in the matter. In the case of Buisson v. Huard" 9 relatives of a lady who was engaged to be married to the plaintiff approached the defendant and inquired of him concerning the plaintiff's character. The alleged defamatory statements which were made in good faith in response to this inquiry were held to be privileged. If the defendant had volunteered the statements it is doubtful that the court would have accorded him the protection of privilege. Protection of the Recipient The problem is similar where a defamatory remark is made for the purpose of protecting some interest of the person to whom the remark is addressed. In the case of McBride v. Ledoux 20 it was held that one member of a family was privileged to make derogatory statements to another member of the family group concerning the latter's suitor. Here again the family relationship affords a substantial guarantee that the defendant is not an intermeddler. A similar situation is presented by statements made by mercantile agencies to subscribing members. Generally speaking, a mercantile agency is not privileged to issue a scandalous report merely for the reason that the publication of such a report is in the general financial interests of its subscribers. 2 1 However, if the report is made in response to a special request by a subscriber and is not generally circulated the court may regard it as a privileged communication.2 2 MARTHA E. KIRK MORRIS D. ROSENTHAL* 19. 106 La. 768, 31 So. 293 (1901). 20. 111 La. 398, 35 So. 615 (1904). 21. Glacona & Son v. The Bradstreet Co., 48 La. Ann. 1191 (1896). 22. For a more detailed discussion of this problem see Note (1941) 4 LOUiISANA LAW Rizviaw 140. *A substantial part of the research work which led to the preparation of this comment was done by Mr. Rosenthal as a research project in the Torts course at Louisiana State University. Mr. Rosenthal served as a member of the armed forces and has been missing in action since December 13, 1944.