14. In a suit for libel by the professor against the dean of the medical school, will the professor be likely to prevail?

A person's interest in his reputation is protected by the tort actions for libel and slander, collectively called «defamation.» To establish a case for libel or slander, the plaintiff must offer sufficient evidence of the following: (i) false and defamatory language by the defendant (i.e., reputation-damaging); (ii) that the defamatory language is «of or concerning» the plaintiff; (iii) publication of the defamatory language by the defendant to a third party; (iv) fault by the defendant that amounts to at least negligence if the defendant is of the media, and either knowledge of falsity or reckless disregard for the truth if the plaintiff is a public official or figure; and (v) in certain types of slander cases, special harm, i.e., harm of a pecuniary nature.

Libel consists of all written or printed matter, meaning any communication embodied in «physical form.» This may include a photograph or computer recording as well. Libel does not require the plaintiff to prove that any special harm occurred as a result of the defendant's defamatory statement. The traditional common law rule was that if the defamatory nature of the communication was apparent from the statement alone, actual harm did not need to be proved, and «presumed» damages could be awarded. Thus, a plaintiff could recover damages that would normally flow from a defamatory statement such as the one at issue, even in the absence of proof of actual or pecuniary harm. Regarding defamatory statements that involve matters of purely private concern, damages may be presumed (in contrast to matters of public concern).

Even if a plaintiff establishes all the elements of a defamation action, if the defendant was protected by either an absolute or qualified privilege while making the statement, it will bar the plaintiff from recovery. For example, where the plaintiff consented to the publication of the statement, the defendant will be protected by absolute privilege.

A is correct. Although the professor would be able to establish a prima facie case for defamation based on libel, he will not prevail because the dean could invoke an absolute privilege of consent. The dean of the medical school wrote a false and reputation-damaging statement that the professor had reportedly abused two patients, which was published to a third party (the organization and any other individuals who read it during the subsequent investigation). However, the dean's letter was in response to the initial letter from the lobbying organization on behalf of the professor and followed by an authorization of his agents to investigate the allegation. Based on these facts, the dean could reasonably invoke a consent privilege in that he believed the professor had invited to limited publication of the statement.

B is incorrect. This answer reaches the correct answer with the wrong reasoning. The professor will not prevail, but not because of the absence of pecuniary loss. This is only a requirement in slander cases, where special damages must be shown, i.e., pecuniary loss. Here, in a libel action, no such showing is required. Nevertheless, the professor will still not prevail because the dean reasonably believed he was being invited to respond to the initial letter, which was then disclosed to additional parties involved in the subsequent investigation.

C is incorrect. There is no such rule that a defendant is required to investigate the truth of a statement before repeating it. Although there are some defamation actions that require a showing of intent by the defendant, this is not the case here. The professor cannot prevail because of the dean's ability to raise consent as an absolute privilege, which was reasonable based on the professor's consent to limited publication of the statement.

D is incorrect. It is true that the defamatory statement was in writing, which means this is a libel case. However, the fact that it was in writing is not dispositive. Even if the statement had been oral, there still could have been a defamation action available to the defendant. What disposes of this action is the privilege of consent that is available to the dean, as explained above.