Sample Law Case Study on Elements of a Defamation Tort
- Discuss, In Detail, Each of the Elements of a Defamation Tort
Defamation refers to making of false announcement about an individual in public that is likely to harm their reputation. For a long time, majority of the defendants in libel lawsuit cases are newspapers and publishers. In some few cases, television presenters also find themselves in the same situation. Before proceeding with any legal process, the plaintiff is advised to ensure that the lawsuit meets all the elements of defamation act. In this case, the petitioner, Walsh needs to prove beyond any realistic reservation that the case can describe as a libel (Ardia 261).
The elements that must be met include the following:
- The statement given about him must be false
- The statement was made public to a third party. This gave the third party the dispensation to be aware of the information
- It must be proven beyond doubt that the publisher acted out of negligence in publishing the information
- It must also be proved that the published information caused damage on the part of the claimant.
Looking at the published article, it can be said that it does not meets all the elements of defamation as stipulated in the defamation act. There is a small chance that Walsh could win this lawsuit case. As a public figure, he would easily prove that the media house acted out of malice from the way they changed their headline three times. The fact that they have not been in good terms before this publication could also help to prove that the media house acted out of malice by going through his court cases to publish such information about him. The problem would arise from the fact that the article does not meet all the elements, an issue that could complicate things.
The article could qualify as an act of malice but the information given is not false. It says the plaintiff insists he is not trying stopping the payments and that is true because Walsh himself admits that. Walsh also agrees that he intends to have the payments modified to suit his current situation, a statement that confirms what the sun times published. It would be a difficult task to go through with this case. It could also lead to more damage because the lawsuit will be out in public and everybody would know about his past that maybe he would wish to remain private.
- Provide A Written Recommendation to Mr. Walsh On Proceeding: Is His Case Likely To Succeed? Why or Why Not?
It would be advisable for Walsh to drop the case as it would not be for his best interest. A part from the fact that it would make many be people to know about the accusations, it is also very difficult to win as the things stand at the moment. To prove all the elements would be difficult and expensive at the same time.
Many defamation lawyers would demand that they are be paid per hour and not on contingency basis (Rolph 35). This means that even if there was a slight chance of Walsh winning the case, the amount he pays his lawyer might be above the amount he is awarded for defamation. As a public figure, he should realize that if the lawsuit does not succeed then the publicity generated could make the members of the public to believe that the alleged accusations were true. This could create more harm to his political career.
1.) Explain the multiple steps to Smokey Joe’s case in a way that Joe can understand
In the second case, Colorado State has a step-by-step guide on marijuana advertisement. Smokey Joe needs to understand some simple advertisement guidelines on the marketing of marijuana. The law requires before any advertisement is made, the retail outlet must give reliable evidence that the market covered by the media has less than 30 percent of listeners below the age of 21 years. All public advertisements are banned from advertising marijuana to the public. Section R1005 of the marijuana law provides that marijuana retail outlet shall not engage in radio advertisement unless it can prove that the audience is not more than 30 percent made up of youth below age 21.
Section R1102 necessitates that the information to be disseminated must not be sham, ambiguous or deceptive. This applies to all marijuana advertisements in all public spaces including radio, television, print media and internet. His favorite stations should also not target audience from outside Colorado State as the law prohibits against such advertisements. Section 1109 prevents having marijuana on signage spaces and advertise his marijuana products as safe because state license authority regulates such advertisement. Section R 1110 prevents advertisements that assert that they are safe because they have been tested by marijuana testing facility.
In section R1111, no marijuana outlet is allowed to have its advertisement visible to members. This means that Joe cannot have his advertisements on the streets, park, and sidewalks or on public places. The general advertising devices and billboards are out of bounds for Joe’s advertisement. Advertisements on moving vehicles, leaflets given to people or posters placed on private properties without the owner’s consent could lead to violation of marijuana advertisement law. Advertisements would only be allowed on the front of Joe’s outlet and only it is meant to show customers what Joe sells in the store and for identification purposes.
Section R 1112 bans commercials that target minors. This means that in any advertisement that he would wish to have now or in future, he must not use cartoon characters or any other picture that is similar and may please minors (Boyd and Connie 6). Section R 1113 forbids any advertisement that targets the devices used by the locals. R1114 states that no marijuana advertisement shall target unsolicited pop-ups in their online advertisements. In Section R 1115, a retail outlet is allowed to sponsor an event but should not make any advertisement unless it is clear that attendants under 21 are less than 30 percent.
2.) Explain whether or not Smokey Joe will win his challenge…but try not to bring him down (too much) when you do.
His advertisement addresses lawful activity that can be advertised in any channel not necessarily his favorite, provided that it meets the less than 30 percent of audience below age of 21. It is not misleading, false or deceptive and the law would not bar him from advertising in any other channel. As things stands currently in marijuana advertisement, there are huge taxes levied on advertisements. The revenues received from selling marijuana in the retail outlets are high and there is no need of paying huge money in form of taxes to put advertisements of the public advertising channels.
If he insists that he must advertise, the he should find a lawyer who is willing to stand and challenge the first amendment on his right to speak and listen to commercial speech. Even when this happens, the media house cannot commit to block out listeners below the age of 21 during such advertisements. It would be better for Joe to stick to other forms of advertisement channels that are not considered public spaces. Probability of winning a court case against ban on marijuana advertisement to the under 21.
Ardia, David S. “Reputation in a Networked World: Revisiting the Social Foundations of Defamation Law.” Harvard Civil Rights-Civil Liberties Law Review 45 (2010): 261.
Boyd, Susan C., and Connie Carter. Killer weed: Marijuana grows ops, media, and justice. University of Toronto Press, 2014.
Rolph, David. Reputation, celebrity and defamation law. London: Routledge, 2016.