21. Should the man prevail in his lawsuit?

To establish a prima facie case for defamation, the following elements must be proved: (i) defamatory language on the part of the defendant; (ii) that the defamatory language was of or concerning the plaintiff; (iii) publication of the defamatory language by the defendant to a third person; and (iv) damage to the reputation of the plaintiff. Where defamation refers to a public figure or involves a matter of public concern, the plaintiff also needs to prove (v) falsity and (vi) fault by the defendant.

Further, where defamation is spoken (slander), the plaintiff must prove special (i.e., pecuniary) damages, unless the verbal defamation falls within one of four exceptions, which are considered slander per se: (i) criminal activity; (ii) professional misconduct; (iii) sexual misconduct; or (iv) loathsome disease.

To prevail on a defamation claim, the defamatory statement about a plaintiff must be «published» to a third party. Under the facts here, the neighbor published defamation about the man by telling the friend that the man was responsible for arson, an accusation which was false. When defamation is spoken, a plaintiff typically needs to prove pecuniary loss or special damages, unless the slanderous statement was slander per se. Accusations that are slander per se are considered so inherently offensive that damage to reputation is assumed, making it unnecessary to prove pecuniary loss.

D is correct. The neighbor's defamatory statement was spoken rather than written, but the man would not need to prove pecuniary loss. An accusation of arson is an accusation of criminal activity (and a crime of moral turpitude) and therefore constitutes defamation per se. Thus, because the neighbor published a false and defamatory statement about the man to the friend, the man would likely prevail on a defamation claim.

A is incorrect. Although the friend did not believe the neighbor's defamatory statement, the man would still be able to prevail on a defamation claim. Liability for defamation, whether spoken or written, attaches when the defamatory statement is published to a third party who understands the defamatory nature of the statement. The defendant can be held liable regardless of whether the third party believes the statement and irrespective of whether the third party proceeds to spread the statement further. Here, because the neighbor told the man's friend a false and defamatory accusation about the man, the neighbor would be liable for defamation.

B is incorrect. The man would be able to prevail on a defamation claim against the neighbor even though the man could not prove that he suffered pecuniary loss. In general, when defamation is in spoken rather than written, a plaintiff can only prevail if he can prove that he suffered pecuniary loss, otherwise known as special damages. However, there is an exemption from this requirement if the defamation involved accusations that are considered defamation per se. These consist of accusations concerning the following: (i) criminal activity; (ii) professional misconduct; (iii) sexual misconduct; or (iv) loathsome disease. The neighbor's accusation that the man had committed arson would qualify as an accusation of criminal activity, and therefore, would be defamation per se. Thus, the man would not need to prove a pecuniary loss to prevail.

C is incorrect. Although the man would prevail on a defamation claim against the neighbor, and it is true that the man was very upset at hearing what the neighbor had said, the man's reaction would not be the basis for his recovery. Proving a slander claim does not require evidence of emotional distress. In this case, liability attached to the neighbor simply by way of the neighbor publishing a defamatory statement about the man to the man's friend.