8. If the law review editor asserts a claim against the other student based on defamation, she will

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.

Certain privileges qualify as defenses to defamation. A qualified privilege allows a speaker to say something defamatory without liability. A defendant may have a qualified privilege if the recipient has an interest in the information, for example, when making statements to a prospective employer. However, the qualified privilege ONLY exists when exercised in a reasonable manner and for a proper purpose, i.e., the speaker-defendant is not privileged based on his conduct. The defendant loses a qualified privilege when it is shown that the speaker acted with «actual malice,» which requires a showing of: (i) knowledge that the statement was false; or (ii) a reckless disregard as to its truth or falsity.

B is correct. The law review editor would prevail because the other student exceeded the scope of his qualified privilege. Because the law student spoke to the firm about the law review editor in the context of an employer inquiring about a potential employee, he enjoyed a qualified privilege against liability for defamation. Under the privilege, the law student was empowered to speak about the law review editor, including potentially making false statements, so long as the student's feedback was not knowingly false or made with a reckless disregard for truth or falsity. Under the facts at issue, the law student told the law firm that it was his understanding that the law review editor was not responsible for work bearing her name. At the time when the student made this statement, he knew that it was not true. Consequently, the law student would no longer be protected by the qualified privilege and would be liable to the law review editor for defamation.

A is incorrect. Although the law review editor would recover against the law student on a defamation claim, the fact that the information the law student shared with the firm was false would not in itself make the law student liable for defamation. In the context of communications with an employer (the law firm) about prospective employees, participants enjoy a qualified privilege which limits liability for defamation, provided their statements about the applicant are not knowingly false or made with a reckless disregard for truth or falsity. Consequently, a participant who shared false information about an applicant would not be liable, if they reasonably believed that information to be true. Here, however, the law student knew the information he shared was false. Therefore, the law student would be liable for defamation, not because the information he shared was false, but rather because he knowingly shared false information.

C is incorrect. The law review editor would recover against the law student because the law student's statements to the firm were knowingly false and therefore the law student would no longer be protected by the qualified privilege to communicate with an employer about a potential employee. Further, although spoken defamation, also known as slander, generally requires proof of pecuniary loss/special damages, the law review editor would not need to prove a financial loss in order to prevail on her defamation claim. Proof of pecuniary loss is not required for a slander/spoken defamation claims which involve statements considered defamation per se- so inherently offensive that damage to the target's reputation is assumed. Statements considered defamation per se involve accusations of (i) criminal activity; (ii) professional misconduct; (iii) sexual misconduct; or (iv) loathsome disease.

Here, the law student's accusation that the law review editor had taken credit for another's work would be considered an allegation of professional misconduct. Therefore, it would not be necessary for the law review editor to prove pecuniary loss.

D is incorrect. The law review editor would recover against the law student because the law student's statements to the firm were knowingly false and therefore the law student would no longer be protected by the qualified privilege to communicate with an employer about a potential employee. Further, the law student would not be shielded from liability because the law firm had asked him about the law student and he did not speak about her unprompted. The law firm's inquiry triggered the qualified privilege for the law student to speak about the law review editor, including potentially sharing information which was false but which the law student reasonably believed to be true. However, the law student ended that privilege when he made a knowingly false statement.