DEFAMATION, INVASION OF PRIVACY

Question 1

defamation (5 elements)

Answer 1

ELEMENTS:

1) defamatory statement (statement adversely affecting reputation) that identifies (don’t need to identify by name) the pff

small group: everyone has claim; large group: one one has claim

2) published to 3rd party (D needs to share it with at least one other person; publication can be negligently or intentionally shared!)
**primary publishers (newspapers, TV stations, etc.) are liable to same extent as author or speaker
**one who repeats a defamation is liable on same general basis as primary publisher

3) FALSITY of the language
4) fault on part of defendant (look at STATUS of pff)
5) damage to pff reputation (look at TYPE of defamation)

Question 2

fault on D’s part

Answer 2

• there are constitutional limitations depending on pff’s status
• public official or figure must prove ACTUAL MALICE (actual malice = D had knowledge that statement was false OR reckless disregard as to whether it was false –> subjective test)
• private persons must prove D’s NEGLIGENCE if matter of public concern (when private person is the pff, only negligence re the falsity must be proved if the statement involves matter of public concern)

NOTE: STATUS OF THE PFF (PUBLIC OR PRIVATE PERSON) IS RELEVANT ONLY FOR DEGREE OF FAULT REQUIRED

Question 3

how to determine whether defamatory statement involves matter of public or private concern

Answer 3

courts look at: content, form and context of publication

Question 4

damage to pff’s reputation
libel

Answer 4

• type of damages pff must prove depends on TYPE of defamation (libel or slander)
• damages are PRESUMED under libel law (defamation that is written)

Question 5

slander

Answer 5

• SPOKEN defamation
• pff must prove special damages (pff must have suffered some pecuniary loss)… unless defamation falls within one of the slander per se categories
• slander per se = damages are presumed (statements that state that pff has committed a serious crime; imputes that pff has engaged in serious sexual misconduct; adversely reflect on pff’s business; pff has loathsome disease)

Question 6

defenses to defamation

Answer 6

1. consent
2. truth
3. privilege (absolute privilege, can never be lost – D may be protected by an absolute privilege for communications between spouses or remarks made during judicial proceedings; qualified privilege – arises only when there is a public interest in encouraging candor such as book reviews or statement to parole board)

Question 7

invasion of right to privacy torts

Answer 7

• personal right and does not extend to members of a family
• four kinds of wrongs:

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

Question 8

appropriation of pff’s picture/name

Answer 8

necessary to show unauthorized use of pff’s picture or name for D’s commercial advantage (e.g., promotion or advertisement)

Question 9

intrusion on pff’s affairs

Answer 9

• forbids acts such as EAVESDROPPING, spying, interception of phone calls, etc
• act of prying or intruding must be highly offensive to a RP

Question 10

publication of facts placing pff in false light

Answer 10

• false light exists where one attributes to the pff views they don’t hold or actions they didn’t take
• false light must be something highly offensive to a RP under circumstances
• if matter is of public interest, ACTUAL MALICE ON D’S PART MUST BE PROVED

Question 11

public disclosure of private facts about pff

Answer 11

• PUBLIC disclosure of PRIVATE info (IF PUBLIC INFO, THEN NO CLAIM) about the pff
• if matter is one of public interest, ACTUAL MALICE ON D’S PART MUST BE PROVED
• disclosure must be highly offensive to a RP of ordinary sensibilities

Question 12

defenses to right of privacy actions

Answer 12

• consent on part of the plaintiff
• truth generally is NOT a good defense
• defamation privilege defenses for false light/disclosure claims