Defamation and Invasion of Privacy

Question 1

Defamation elements

Answer 1

A defamatory statement that specifically identifies the plaintiff

Published to a third party

Falsity of the defamatory language

Fault on the part of the defendant

Damage to the plaintiff’s reputation

Question 2

Defamatory statement

Answer 2

Statement adversely affecting reputation
- factual representation that reflects adversely on character

Statement of opinion is actionable only if it appears to be based on specific facts

Name-calling is insufficient

Question 3

Defamatory statement - inducement and innuendo

Answer 3

If the statement is not defamatory on its face, the plaintiff may plead additional facts as inducement to establish defamatory meaning by innuendo

Question 4

Defamatory statement - living person

Answer 4

Any living person may be defamed
- deceased person is not actionable

In a limited sense, a corporation, unincorporated association, or partnership may be defamed

Question 5

Specifically identify plaintiff

Answer 5

The plaintiff must establish that a reasonable reader, listener, or viewer would understand that the defamatory statement referred to the plaintiff

Colloquium

Group Defamation

Question 6

Specifically identified plaintiff and colloquium

Answer 6

If the statement does not refer to the plaintiff on its face, extrinsic evidence may be offered to establish that the statement refers to the plaintiff

Known as pleading colloquium

Question 7

Specifically identified plaintiff and group defamation

Answer 7

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

Only some members of a small group, pl can recover if a reasonable person would view the statement as referring to the plaintiff

If a large group, no member can prove

Question 8

Publication and defamation

Answer 8

Communication of the defamation to a third person who understands it

Can be either intentionally or negligently - intent to publish, not intent to defame that is req intent

Each repetition is a separate publication
- but for magazines, newspapers, etc, most states have adopted a single publication rule where all copies are treated as one publication

Made only to the plaintiff - no publication and no defamation

Question 9

Who can be liable for publication - defamation

Answer 9

Primary publishers are liable to the same extent as the author or speaker
- one who repeats defamation is liable on same basis as primary publisher

One selling papers or playing audio files is a secondary publisher and is liable only if he knows or should know of the defamatory content

An Internet service provider is not treated as a publisher when a user of its service posts defamatory content

Question 10

Falsity - defamation

Answer 10

Under traditional common law, plaintiff did not have to prove the statement was false
- the defendant was obligated to use as a defense and prove truth

Many states have altered this and now require the plaintiff to prove falsity as part of the case-in-chief
- in states that do follow traditional rule, pl must prove falsity where constitutionally obligated to

If its true, may still have intentional infliction of emotional distress or invasion of privacy

Question 11

Fault - defamation

Answer 11

A majority of states require a showing of fault on the part of the defendant
- degree of awareness that the defendant had concerning the falsity of the statement
- although false, defendant had good faith belief it was true and then not liable because fault free

Question 12

Fault - private person

Answer 12

Need to show that the person acted negligently concerning the falsity of the statement they published

All of the rest of this in constitutional law

Question 13

Malice (public person)

Answer 13

Actual malice is knowledge that the statement was false or reckless disregard as to whether it was false

Subjective test
- defendant’s spite or ill will is not enough
- deliberately altering a quotation may constitute malice if the alteration causes a material change in the meaning conveyed by the quotation

Question 14

Damages - defamation

Answer 14

Damages to plaintiff’s reputation

The type of damages must prove depends on the type of defamation - libel or slander

Question 15

Libel - damages

Answer 15

Libel is a defamation that is embodied in permanent form
- written or printed publication
- radio and tv programs is treated by most courts as libel

Damages generally presumed under the law of libel
- typically does not need to prove special damages to recover
- minority of courts will presume general damages only if libel per se and require proof if statement requires reference to extrinsic facts to establish its defamatory nature

Question 16

Slander - damages

Answer 16

Slander is spoken defamation

Must prove special damages, unless the defamation falls within one of the slander per se categories
- some pecuniary loss in order to recover anything
- but once prove special damages, may recover general damages as well

If not slander per se, need proof of economic harm

Question 17

Slander per se

Answer 17

Do not need to prove special damages

Categories
- statement that adversely reflects on the plaintiff’s business or profession
- pl has committed a serious crime (most common law crimes)
- accuses pl of serious sexual misconduct
- pl has a loathsome disease (venereal)

Question 18

Consent - defamation

Answer 18

Consent is a complete defense

Rules relating to consent to intentional torts apply here

Question 19

Absolute privilege - defamation

Answer 19

Defendant may be protected by an absolute privilege for the following
- communications between spouses
- remarks made during judicial proceedings, by legislators during proceedings, by federal executive officials, in compelled broadcasts

Question 20

Mitigating factors and defamation

Answer 20

Mitigating factors
- no malice
- retraction
- anger of the speaker provoked by the plaintiff

May be considered by the jury on the damages issues, not defenses to liability

Question 20

Qualified privilege - defamation

Answer 20

A qualified privilege arises only when there is a public interest in encouraging candor

Defendant bears burden of proving that privilege exists
- case-by-case basis

May be lost if the statement is not within the scope of the privilege or it is shown that the speaker acted with actual malice
- needs to be a statement made in good faith and relevant in scope

Possible examples
- references and recommendations
- reports of public hearings or meetings
- statements made to those who are to take official action (parole board about a prisoner)
- statements made to defend one’s own actions, property, or reputation

Question 21

Qualified privilege - common interest privilege

Answer 21

Qualified privilege for statements made to colleagues within same organization

If reasonable steps to investigate truth and stayed within relevant scope

Question 22

Invasion of right to privacy - generally

Answer 22

Personal right and does not survive the death of pl
- not applicable to corporations
- need proximate causation

Does not need to plead and prove special damages
- emotional distress and mental anguish are sufficient

Four kinds of wrongs

Question 23

Appropriation - privacy

Answer 23

Unauthorized use of the plaintiff’s picture or name for the defendant’s commercial advantage
- emotional damages (right of publicity is for economic damages)
- can be any plaintiff

Generally limited to advertisements or promotions

Mere economic benefit to the defendant by itself is not sufficient

Question 24

Newsworthiness exception - appropriation

Answer 24

Not appropriation to use plaintiff’s picture or name if it was about newsworthy conduct

Question 25

Intrusion - right to privacy

Answer 25

Invasion of plaintiff’s seclusion in a way that would be highly offensive to a reasonable person

Eavesdropping, spying, interception of phone calls, etc

Intrusion must be private

Question 26

False light - right of privacy

Answer 26

Dissemination of material falsehood about plaintiff that would be highly offensive to reasonable person
- big lie about the plaintiff

Must circulate the statement to the public at large

If matter is of public interest, actual malice must be proved

Recovering for emotional damages here, while defamation recovers for economic damages
- not a complete overlap either between false light and defamation - false light that saying catholic when jewish, but not defamation

Question 27

Public disclosure of private facts - privacy

Answer 27

Public disclosure of private information that is highly offensive to a reasonable person of ordinary sensibilities
- disclosure must be of a truly confidential fact

May attach even though the actual statement is true
- first amendment limitations probably apply if the matter is of legitimate public interest

And newsworthy exception

Question 28

Defenses to privacy torts

Answer 28

Some defenses to the right of privacy actions are consent and the defamation privilege defenses
- consent for all
- absolute/qualified privilege for false light and disclosure claims

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