Defamation and Invasion of Privacy

Question 1

Prima Facie Case for Defamation

Answer 1

1) a defamatory statement that specifically identifies the plaintiff
2) published to a third party
3) falsity of the defamatory language
4) fault on part of the defendant
5) damage to the plaintiff’s reputation

Question 2

Defamatory Statement

Answer 2

A defamatory statement is one tending to adversely affect one’s reputation. A statement of opinion is actionable only if it appears to be based on specific facts, and an express allegation of those facts would be defamatory.

Name calling is insufficient

Question 3

Living Person Requirement

Answer 3

Any living person can be defamed. However, defamation of a deceased person is not actionable.

Question 4

Identify the Plaintiff

Answer 4

The plaintiff must establish that a reasonable reader, listener, or viewer would understand that the defamatory statement referred to the plaintiff. Any identifying information is sufficient.

Extrinsic evidence may be admitted to show that the statement was referring to the plaintiff (pleading colloquium)

Question 5

Group Defamation

Answer 5

1) if the statement refers to all members of a small group, each member may establish that the statement specifically identifies them by alleging they are a group member

2) if the statement only refers to some members of a small group, the plaintiff can recover if a reasonable person would view the statement as referring to the plaintiff

3) if the statement is about a large group, no member can prove the statement specifically identifies them

Question 6

Publication

Answer 6

Publication means communication of the defamation to a third person who understands it. Such publication can be made intentionally or negligently.

Each reputation is a separate publication

Single Publication Rule - most states have adopted a rule for magazines, newspapers … under which all copies are treated as one publication

Question 7

Falsity

Answer 7

Under the traditional common law, the plaintiff did not have to prove falsity

The majority of states now require the plaintiff to prove falsity as part of the case in chief

Question 8

Fault for Public Official or Figure

Answer 8

Actual malice must be proved in defamation cases brought by public officials and public figures.

Actual malice is (1) knowledge that the statement was false or (2) reckless disregard as to whether it was false.

Question 9

Fault for Private Persons on a Matter of Public Concern

Answer 9

when the plaintiff is a private person, only negligence regarding the falsity must be proved if the statement involves a matter of public concern.

However, if the defendant is only negligent, only actual injury damages are recoverable. The plaintiff must prove actual malice to recover speculative or punitive damages.

NOTE - if the plaintiff is a private person and the state is a private concern, then the constitutional restrictions do not apply, but most states still require a showing of negligence.

Question 10

Damages to Plaintiff’s Reputation

Answer 10

The types of damages the plaintiff is required to prove depends on the type of defamation (libel or slander) involved.

Damages are generally presumed for libel.

For slander (unless slander per se) the plaintiff must prove they suffered some pecuniary loss to recover anything.

Question 11

Libel

Answer 11

libel is defamation that is embodied in any permanent form - written, printed, radio, television

The plaintiff generally does not need to prove special damages to recovery and general damages are presumed

Question 12

GA Libel

Answer 12

Libel damages will be presumed only for statements that are

1) libel per se; or
2) statements published in newspapers or magazines

where the statements don’t constitute libel per se, special damages, such as loss of employment, income, or profits, must be pleaded.

Question 13

GA Defamacast Statute

Answer 13

a plaintiff must prove actual injury for defamatory statements made in radio or television broadcasts

If the broadcaster or its employees are being sued rather than the speaker, a plaintiff must establish negligence in failing to prevent the utterance of the statement

Question 14

Slander

Answer 14

Slander is spoken defamation. The plaintiff must prove special damages unless the defamation falls within one of the slander per se categories

Slander per se (and libel) are statements that
1) adversely reflect on the plaintiff’s business or profession
2) state that the plaintiff has committed a serious crime (moral turpitude crimes)
3) impute that the plaintiff has engaged in serious sexual misconduct
4) state that the plaintiff has a loathsome disease

Question 15

Defenses to Defamation

Answer 15

Consent - a complete defense (same consent requirements of intentional torts)

Truth - in cases where the plaintiff is not required to prove falsity, the defendant may prove truth as a complete defense

Privileges (absolute and qualified)

Question 16

Absolute Privileges

Answer 16

A defendant will be protected by an absolute privilege for the following:

1) communications between spouses

2) remarks made during judicial proceedings, by legislators (even if not relating to the proceeding), by federal executive officer in compelled broadcasts

Question 17

Qualified Privileges

Answer 17

A qualified privilege arises when there is a public interest in encouraging candor. The defendant bears the burden of proving that a privilege exists. The qualified privilege will be lost if the statement is not within the scope of the privilege or it is shown that the speaker acted with actual malice.

Examples:

– references and recommendations
– reports of public hearings or meetings
– statements made to those who are to take official action
– statements made to defend one’s own actions, property, or reputation

Question 18

GA Retraction Statute

Answer 18

It limits a plaintiff’s recovery to actual damages if the defendant proves that:
1) the statement was made without actual malice;
2) within 7 days after receipt of written demand (3 days if statement was broadcast) a retraction was published in a conspicuous manner as the original statement; and
3) if requested by the plaintiff, the retraction was accompanied by an editorial repudiating the statement

Recovery is similarly limited if the defendant proves the plaintiff never made a written request for retraction.

Question 19

Right to Privacy Torts

Answer 19

1) appropriation of the plaintiff’s name or picture
2) intrusion on the plaintiff’s affairs or seclusion
3) publication of facts placing the defendant in false light
4) public disclosure of private facts about the plaintiff

Question 20

Appropriation of Plaintiff’s Picture or Name

Answer 20

The plaintiff must show an unauthorized use of the plaintiff’s picture of name for the defendant’s commercial advantage.

Liability is generally limited to advertisements and promotions of products.

Question 21

Intrusion on Plaintiff’s Affairs or Seclusion

Answer 21

the claim forbids eavesdropping, spying, interception of phone calls or electronic communications, and other similar conduct.

The act of prying or intruding must be highly offensive to a reasonable person.

The thing into which there was an intrusion must be private - photos taken in a public place are not actionable

Question 22

False Light

Answer 22

False light exists where one attributes to the plaintiff views they do not hold or actions they did not take

It must be something highly offensive to a reasonable person under the circumstances.

The defendant must circulate the statement to the public at large. Sharing with only one person or a few people is not sufficient.

Rule - dissemination of a material falsehood about the plaintiff that would be highly offensive to a reasonable person

NOTE - in matters of public interest, actual malice must be proved

Question 23

Public Disclosure of Private Facts

Answer 23

this involves public disclosure of private information about the plaintiff

The disclosure must be highly offensive to a reasonable person of ordinary sensibilities.

Liability may attach even though the statement is true.

Rule - widespread dissemination of confidential information about the plaintiff not of a legitimate concern to the public and highly offensive to a reasonable person

Question 24

Defenses to Invasion of Privacy

Answer 24

Consent

Defamation Privileges

Truth is generally not a good defense, nor is inadvertence, good faith, or lack of malice