Defamation, Invasion of Privacy and Business Torts

Question 1

What is intentional misrepresentation?

Answer 1

Must be material fact (false representation)

Scienter (known its false or reckless disregard)

Intent to induce reliance

Causation

Justifiable Reliance

Actual damages

• Benefit of bargain (majority)
• Benefit of bargain or out of pocket (minority)

Question 2

What is public disclosure of private facts?

Answer 2

Plaintiff must show that

• Defendant gave publicity to a matter concerning the private life of another
• The matter publicized is the kind that would be highly offensive to a reasonable person and is not of legitimate concern to the public.

Must be dispensed at large.

Question 3

is either consent or truth a defense to invasion of privacy?

Answer 3

Truth: NO

Consent: YES
- But mistake negates defense even if reasonable.

Question 4

Does the right to privacy extend to coproations?

Answer 4

No.

Question 5

What are the four invasion of privacy torts generally?

Answer 5

Misappropriation of the right of publicity

Intrusion upon seclusion

Public disclosure of private facts

Placing plaintiff in a false light.

Question 6

What is intrusion upon seclusion?

Answer 6

The defendant’s act of intruding on P’s private affairs, if highly offensive to a reasonable person.
Example: eavesdropping.

Note: Taking pictures in public is not.

Question 7

What is placing a plaintiff in a false light?

Answer 7

Plaintiff must prove that defendant
- Made public facts about plaintiff that placed the plaintiff in a false light, which would be highly offensive to a reasonable person.

Most jurisdictions require malice.

Question 8

What are the elements of defamation?

Answer 8

The defendant’s defamatory language is of, or concerning the plaintiff, is published to a third party, who understands its defamatory nature, and it damage’s plaintiff’s reputation.

• Opinion could be defamatory if there is a factual basis .
• Statement must be intentionally or negligently made to third party.
• Person who repeats defamatory statement may be liable.
• ISPs not liable. (not publishers)

For matters of public concern: must prove falsity.

If public officer: must prove malice.

Question 9

What are the torts for interference with business relations?

Answer 9

Intentional Interference with a Contract
- A valid contract between the plaintiff and third party
- Defendant knew of the contractual relationship
- Defendant intentionally interfered.
- Damages
Note: Contract must be valid and not terminate at will.

Interference with a Prospective Advantage

Theft of Trade Secrets.

Question 10

What are injurious falsehoods?

Answer 10

Statements injurious to plaintiff’s business. Must prove
- Publication of false statement, with malice, relating to plaintiff’s title to property, quality of business, or products, causing special damages

Slander of Title
- Same as above, minus “relating to plaintiffs title, quality of business, or products, and adds diminished value in 3rd parties eyes.

Question 11

What are the wrongful uses of the legal system?

Answer 11

Malicous Prosecution
- Intentionally/recklessly institutes, for improper purpose (without probable cause), and dismissed in favor of whom it was brought against.

Abuse of Process
- Ulterior motive.

Question 12

What are the constitutional requirements for defamation?

Answer 12

Public Official/Public Figure
- Malice
Note: limited purpose public figure (if statement relates to their participation, public figure, if not, private).

Private Person

• Public Concern: fault- negligence/malice. Must prove falsity. At common law, if not public concern, need not prove falsity, defendant must prove truthfulness.
• Private Concern: Negligence.

Question 13

What are the defenses to defamation?

Answer 13

Truth

Consent

Absolute Privileges

• Judicial Proceeding/Legislative Proceeding
• Between Spouses concerning 3rd persons
• Required publications.

Qualified privlege
- Interest of public
- Interest of recipient
- Acting in public interest
Note: Lost if abused (malice)

Question 14

What is a misappropriation of the right to publicity?

Answer 14

Plaintiff must prove
- Defendant’s unauthorized appropriation of the plaintiff’s name, likeness, or identity, for defendants advantage, lack of consent, and injury.

States split if this survives death.

Question 15

What is negligent misrepresentation?

Answer 15

Defendant provides false information, as a result of negligence, during course of business, causing plaintiff to justifiably rely on, plaintiff is either in contractual relationship or is 3rd party known to be benefited by such information.

Note: Negligence defenses available.

Question 16

What is the difference between libel and slande?

Answer 16

Libel

• Written or printed
• Radio/TV broadcasts can be libel
• E-mail is liable
• General damages (harm to reputation)..

Slander

• Spoken
• Special damages (3rd party heard and acted aversely)
• Slander Per Se: need not prove special damages if accused of committing a crime, lack of fitness for profession, disease, of sexual misconduct.