Defamation / Invasion of Privacy Flashcards
Elements of Defamation
- Defamatory language—language diminishing respect, esteem, or goodwill toward P. (Damages P’s reputation)
- Of or concerning P—reasonable 3rd party believes language refers to particular P
- Publication—intentional or negligent communication to 3rd party
- Damages
Defamation - Falsity
- P must prove that the statement was false when it is matter of public concern
- Private P suing on a statement that does not involve matter of public concern not required to prove falsity; D may prove truth as an affirmative defense
- Opinion only basis for defamation if implies knowledge of facts
Defamation - Fault
P must prove some level of fault
- Public figure - actual malice (D knows of falsity/ reckless disregard of truth)
- Private figure/matter of public concern - D acted with fault; either negligence or actual malice
- Private figure/not matter of public concern - at least negligence
Defamation-Libel/Slander Distinguished
o Libel - written, printed or otherwise recorded in permanent form; general damages that compensate P for harm to reputation
o Slander - spoken word, gesture, or any form other than libel; special damages required; 3rd party heard comments and acted adversely to P; usually, but not always, economic loss
Slander Per Se
- A statement imputing the P in his trade, office, or profession.
- A statement accusing the P of committing serious crimes.
- Attributes to P a loathsome disease
- Statement that imputes the unchastity of a woman
Defenses to Defamation
- Truth—complete defense
- Consent—cannot exceed scope
- Absolute privilege—for remarks during judicial/legislative proceedings, between spouses, or in required publications
- Qualified privilege—affecting important public interest, in the interest of D or 3rd party; privilege is lost if abused; burden on D to prove privilege exists; burden on P to prove privilege abused and lost
Appropriation
- unauthorized use of P’s picture or name for commercial advantage.
- Limitation: P’s likeness must be used for advertising, promotional, or labeling purposes. (Has to be commercial purpose)
Intrusion
- Interference with a P’s seclusion in a way that would be objectionable to a reasonable person.
- Limitation: P must be in a place where she has an expectation of privacy.
False Light
-The dissemination of information that is in some way inaccurate and that would be objectionable to a reasonable person.
Public Disclosure of Private Facts
- The dissemination of factually accurate information that would normally be confidential, and the disclosure of which would be objectionable to a reasonable person.
ex. D broadcasts fact of person’s embarrassing disease on local television - Newsworth disclosure not actionable
Defamation of Public Official/Public Figure
Liability Standard: P must prove Actual Malice
Damages Available: Compensatory Damages Presumed and Punitive
Burden of Proof: Plaintiff must prove falsity
Defamation of Private Figure - Matter of Public Concern
Liability Standard: P must prove Negligence and actual injury
Damages Available: Compensatory for actual injury; Presumed or punitive damages require actual malice.
Burden of Proof: P must prove falsity
Defamation of Private Figure - Matter of Private Concern
-Liability standard: Unclear - Negligence
-Damages Available: Compensatory for actual injury; -Presumed or punitive damages do not require actual malice
Burden of Proof: Unclear - Burden on D to prove truth
Exception for Public Disclosure of Private Facts
Newsworthy disclosures are not actionable
Malice for defamation
- Knowledge that the statement was false,
or - Reckless disregard as to whether it was false
-D’s spite or ill will is not enough to show malice
