Defamation Flashcards
Defamation
Defamation can be either slander (spoken statements) OR libel (written statements—as seen here).
To establish a defamation claim based on libel, the plaintiff must prove all of the following:
1) The defendant knowingly made a false statement about the plaintiff or negligently failed to determine its falsity.
2) That type of statement would tend to harm the plaintiff’s reputation.
3) The defendant intentionally or negligently communicated (ie, published) that statement to a third party.
Therefore, a defendant who reasonably believed that his/her statement was true is not liable for defamation.
Defamation (visual)
Defamation - Slander
Defamation can be libel (written statements) or slander (spoken statements—as seen here).
A defamation claim based on slander ordinarily requires proof that:
1) the defendant, at a minimum, negligently made a false statement about the plaintiff
2) that type of statement would tend to harm, and did harm, the plaintiff’s reputation AND
3) the defendant published the statement to a third party who understood its defamatory nature.
But when the plaintiff is a public figure or official, the plaintiff must prove that the false statement was made with actual malice.
- Actual malice exists when the defendant knew that the statement was false or recklessly disregarded its falsity (i.e., had serious doubts about its truthfulness).
Can defamatory statements be opinions?
Defamatory statements are typically statements of fact.
But an opinion can also be defamatory when it is impliedly based upon a fact that is false and harmful to the plaintiff’s reputation—eg, an opinion that a person is a thief implies knowledge of the fact that he/she stole something.
But if the person making the statement has reasonable grounds for their belief—because he neither knew nor negligently failed to determine that his statement was false—then the P’s defamation claim will fail.
Defamation - Slander - when is a statement harmful to the P’s reputation?
A defamation claim based on slander requires proof of the following:
1) The defendant knowingly made a false statement about the plaintiff or negligently failed to determine its falsity.
2) The statement was defamatory, meaning that the type of statement would tend to harm the plaintiff’s reputation.
3) The defendant intentionally or negligently communicated the statement to a third party.
4) The statement caused the plaintiff to suffer special damages or amounted to slander per se.
A statement is harmful to the plaintiff’s reputation if it either diminishes respect, esteem, or goodwill toward the plaintiff or deters others from associating with the plaintiff—eg, had the teacher told the director that the senior had a poor work ethic. (uworld example-tenor/bass choir)
Invasion of Privacy
“I FLAP”
MNEMONIC: I FLAP (Intrusion, False Light, Appropriation, Private facts)
The right of privacy does not extend to corporations, only to individuals. Additionally, because the right of privacy is a personal right, in most instances, this right terminates upon the death of the plaintiff and does not extend to family members.
Invasion of privacy is not a single tort but includes four separate causes of action.
Invasion of Privacy
Misappropriation of the Right to Publicity
- Misappropriation of the Right to Publicity
A majority of states recognize an action for the misappropriation of the right to publicity, which is based on the right of an individual to control the commercial use of his identity.
The plaintiff must prove:
i) The D’s unauthorized appropriation of the P’s name, likeness, or identity
(Most often, commercial appropriation cases involve the use of the plaintiff’s name or picture, but this is not required. A television or radio production might mimic the plaintiff’s distinctive vocal patterns. Also, an action may be maintained when the defendant uses other items closely associated with the plaintiff, such as a specially designed car with unique markings associated with a racecar driver.);
ii) For the D’s advantage, commercial or otherwise;
iii) Lack of consent; and
iv) Resulting injury.
The states are split as to whether this right survives the death of the individual, with some states treating it as a property right that can be devised and inherited.
Invasion of Privacy
Intrusion Upon Seclusion
Many states recognize an action for unreasonable intrusion upon the plaintiff’s private affairs (also referred to as “intrusion upon seclusion”).
The D’s act of intruding, physically or otherwise, into the P’s private affairs, solitude, or seclusion, if the intrusion is highly offensive to a reasonable person establishes liability.
Examples:
- Eavesdropping on private conversations by electronic devices is considered an unreasonable intrusion.
- Photographing a person in a public place generally is not, unless the photograph is taken in a manner that reveals information about the person that the person expects to keep private even in a public place.
Unlike the other forms of invasion of privacy, *no publication is required to establish liability****.
Invasion of Privacy
Placing the P in a False Light
Placing the Plaintiff in a False Light
A majority of jurisdictions recognize a separate tort of false light.
The plaintiff must prove that the defendant:
(i) made public facts about the plaintiff that
(ii) placed the plaintiff in a false light,
(iii) which false light would be highly offensive to a reasonable person.
Most jurisdictions require that the plaintiff prove actual malice by the defendant. As considered in the discussion of defamation, this may be constitutionally required in many instances.
Examples:
Attributing to the plaintiff views that he does not hold or actions that he did not take may constitute placing him in a false light.
Similarly, falsely asserting that the plaintiff was a victim of a crime or once lived in poverty may be sufficient for the false light tort.
This false light does not necessarily involve an absolute falsity; rather, the presentation of the truth in a misleading way can be sufficient to sustain this claim.
Consequently, truth is not a defense if the resulting implication is still false or misleading, but it may be a defense if the resulting implication is true.
Invasion of Privacy
Public Disclosure of Private Facts
Public Disclosure of Private Facts
a. Elements
To recover, the plaintiff must show that:
i) The defendant gave publicity to a matter concerning the private life of another; and
ii) The matter publicized is of a kind that:
a) Would be highly offensive to a reasonable person; and
b) Is not of legitimate concern to the public.
b. Publicity
The requirement of publicity in the public disclosure tort requires far broader dissemination of the information than is required under the “publication” requirement of defamation.
The information must be communicated at large or to so many people that it is substantially certain to become one of public knowledge.
c. Disfavored tort
Because the public disclosure tort involves the dissemination of true facts, it clearly is in tension with the First Amendment’s freedoms of speech and the press. Accordingly, the tort is disfavored in the modern era.
d. Disclosure of dated material
Today, most courts hold that the public disclosure of even dated material—for example, a criminal conviction from decades ago—is a matter of public interest and therefore does not create liability.
Invasion of Privacy
Damages
The plaintiff need not prove special damages for any of the invasion of privacy torts.
Emotional distress and mental distress are sufficient.
Invasion of Privacy
Defenses
a. Defamation defenses
The defenses of absolute and qualified privilege that are applicable in defamation actions also apply to privacy actions brought on “false light” or “public disclosure of private facts” grounds.
These defenses are not applicable if the defendant was intrusive.
b. Consent
Consent is a defense to invasion of privacy actions. A defendant’s mistake as to consent negates this defense, no matter how reasonable the mistake.
EXAM NOTE: Remember that truth generally is not a defense to invasion of privacy, whereas it is a complete defense to defamation.
