Defamation Flashcards
Elements of Defemation
Plaintiff must show that:
- Defendant made the defamatory statement;
- The statement is of or concerning the Plaintiff;
- The statement was published by a third party who understood its defamatory nature; AND
- Damage to the plaintiff’s reputation as a result.
Definitions
- Defamatory Language: Diminishes the respect, esteem, goodwill tor the plaintiff or deters others from associating with plaintiff. Muse be false. Cannot be a mere opinion.
- Of or Concerning the Plaintiff: Reasonable person would link the defamatory statement to the plaintiff.
- Publication: Statement must be communicated to a third party. Persons repeating the defamatory statement may also be liable. Internet Service Providers are not considered publishers for defamation purposes.
Constitutional Limitations to Defamation
Public Official/Public Figure: Plaintiff must prove that the person who made the statement either knew that it was false or acted with reckless disregard for the truth. [Also called an “actual malice” standard].
Private Individuals and Matters of Public Concern: Plaintiff must prove that the statement is false and that the person who made the statement was negligent with respect to the falsehood.
[It is unclear if there is a constitutional limit for Private Individuals and Matters not of Public Concern–though most jurisdictions require a showing of negligence as to the falsity of the statement.]
Libel
A written, printed, or recorded statement [of defamatory language]
Damages
Plaintiff may recover general damages (i.e. damages without proof of a measurable harm).
Slander
A spoken statement [of defamatory language].
Damages: Plaintiff must prove special damages [showing of an economic loss] EXCEPT when it is slander per se.
Examples of Slander Per Se
- Commission of a Serious Crime
- Unfitness for a Trade or Profession
- Having a Loathsome Disease
- Severe Sexual Misconduct
Constitutional Limitations to Damages
- Private Individual and a Matter of Public Concern: Plaintiff can only recover actual damages unless there is a showing of actual malice
- Private Individual and Matter Not of Public Concern: May recover general damages. Does not need to show actual malice.
Defenses to Defamation
- Truth
- Consent
- Privilege
-
Absolute Privilege: Speaker is immune from liability, includes statements made:
- During the course of judicial proceedings
- In the course of legislative proceedings
- Between spouses AND
- Required publications by radio and TV (like a political ad)
-
Conditional Privilege: Statement made in good faith pursuant to some duty or responsibility such as:
- In the interest of the defendant (i.e. you’re defending your reputation)
- In the interest of the recipient of the statement OR
- Affecting some important public interest
-
Absolute Privilege: Speaker is immune from liability, includes statements made:
Invasion of Privacy
Features:
- The right to privacy applies to individuals and not corporations
- The right typically terminates upon death of the plaintiff
- Invasion of privacy includes four separate causes of action
The Four Causes of Action in Invasion of Privacy
- Intrusion Upon Seclusion
- False Light
- Appropriation of the Right to Publicity
- Public Disclosure of Private Facts
Damages
Need not prove special damages, emotions or mental distress will suffice
Intrusion Upon Seclusion
It’s a cause of action for Invasion of Privacy
Occurs when a defendant intrudes upon the plaintiff’s private affairs in a manner that is objectionable to a reasonable person.
[Peeping Tom, phone hacking, etc.]
False Light
Cause of Action for Invasion of Privacy
Occurs when defendant:
(1) Makes public facts about the plaintiff
(2) that place the plaintiff in a false light
(3) which would be highly offensive to a reasonable person.
[Writing a story about a murdered but including a picture of someone else. It’s not technically defamation]
Appropriation of the Right to Publicity
Cause of Action for Invasion of Privacy
A property-like cause of action when someone:
(1) appropriates another’s name or likeness
(2) for the defendant’s advantage
(3) without consent AND
(4) causes injury
Public Disclosure of Private Facts
Cause of Action for Invasion of Privacy
Occurs when defendant
(1) Publicizes a matter concerning the private life of another AND
(2) The matter publicized is
(3) highly offensive to a reasonable person AND
(4) is not a legitimate public concern
Note: This tort is difficult to prove as “legitimate public concern” is construed broadly
Defenses to Invasion of Privacy
- Qualified and Absolute Privilege: Defense against False Light and Public Disclosure Claims
- Consent: Applicable defense to all invasion of privacy torts
Note: Truth is NOT a defense to Invasion of Privacy Torts
Intentional Misrepresentation (Fraud)
Requires 6 Elements
- False Representation
- Scienter
- Intent
- Causation
- Justifiable Reliance
- Damages
Terms
- False Representation MUST concern a material fact. It can involve misleading or deceptive statements. [This does not conflict with the no general duty to disclose material facts].
- Scienter: Defendant knows that the representation is false or has a reckless disregard for its falsehood
- Intent: Defendant must intend to induce the plaintiff to act in reliance on the misrepresentation
- Causation: The misrepresentation must have caused the plaintiff to act or refrain from acting
- Justifiable Reliance: It is NOT justifiable reliance of the misrepresentation is obviously false or it was clearly an opinion
- Damages: Must prove actual, economic, pecuniary loss. Nominal damages are not available. Most jurisdictions offer “benefit of the market” which is the difference from the actual value received and what would have been received is the misrepresentation were true.
Negligent Misrepresentation
Elements
- Defendant provided false information to the plaintiff
- As a result of the defendant’s negligence in preparing the information
- During the course of a business or profession
- causing justifiable reliance AND EITHER
(1) The Plaintiff is in a contractual relationship with the defendant OR
(2) The plaintiff is a third party known by the defendant to be a member of the limited group for whose benefit the information is supplied.
Defenses
Apply defenses to Negligence
Damages
Plaintiff can recover reliance (out-of-pocket) and special damages if negligent representation is proved with sufficient certainty.
