Defamation, Invasion of Privacy and Business Torts Flashcards
What are the elements of defamation?
- Defamatory language
-> diminishing respect, esteem, or goodwill toward P - Of or concerning P
-> reasonable third party believes language refers to particular P - Published to a third party who understands the defamatory nature
-> intentional or negligent communication to third party who understands defamatory nature
-> republication identifying original speaker and uncertainty as to accuracy of the statement still satisfy this element - Damages the P’s reputation
What additional elements must the P prove if P is a public figure or the statements relates to matters of public concern?
P is a public person, P must prove
-> D acted with actual malice (D knows of falsity/reckless disregard for truth)
-> the statement is FALSE
Language is a matter of public concern and P is NOT a public person, then P must prove
-> D acted with fault which is EITHER negligence OR actual malice
-> the statement is FALSE
Language is NOT a matter of public concern and P is NOT a public person, then P must prove
-> D acted with at least negligence
-> no need to prove that the statement is false, but D can use it as an affirmative defense
What is libel?
How are damages calculated under libel?
What is libel per quod?
Libel
-> defamation through written, printed, or otherwise recorded in permanent form (generally includes radio and television)
Damages
-> general damages that compensate P for harm to reputation
-> CL allowed recovery of presumed damages
Libel per quod
-> if defamatory statement requires proof of extrinsic facts to show it is defamatory
THEN
-> P must prove either special damages OR that it falls into a category of slander per se
What is slander?
What are the damages under slander?
What is slander per se?
What are the damages linked to slander per se?
Slander
-> spoken word, gesture, or any for other than libel;
-> to a third party
Damages for slander:
-> Special damages - third party heard defamatory statement AND ACTED ADVERSELY to the P
OR
-> slander fits into one of the categories of slander per se
Slander per se - no special damages required if statement is about (and third party either hears it directly or overhears it)
-> P committing a crime,
-> conduct that reflects poorly on P’s fitness to conduct trade or profession,
-> loathsome diseases,
OR
-> sexual misconduct
Damages for slander per se:
-> general damages can be recovered as parasitic damages
What are the constitutional limits on damages linked to defamation?
Private person/matter of public concern
-> actual malice required for punitive or presumed damages
Private person/not public concern
-> actual malice NOT required for punitive or presumed damages
What are the defenses to defamation?
Truth
-> truthful statement is not defamatory
-> only an affirmative defense if private figure and not public concern
Consent
-> cannot exceed scope
Absolute privilege - for remarks:
-> during judicial/legislative proceedings (generally must be made by participants and related to proceedings);
-> by legislation or federal/state executive officials in course of official duties;
-> between spouses about a third person;
OR
-> in required publications by radio, tv, newspaper (e.g. political candidate’s statements)
Qualified privilege (e.g. credit report checks, employment references, etc..)
-> in the interest of the publisher (aka the D)
-> in the interest of the recipient of the statement or a third party
-> affecting important public interest,
Can a deceased P’s estate bring a defamation lawsuit?
No they cannot.
Is a third party liable for repeating a defamatory statement?
A third party is liable for repeating a defamatory statement, EVEN IF the third party
-> identifies the originator of the defamatory statement
AND
-> acknowledges the lack of truth in the statement
What are the different causes of action to invasion of privacy?
I FLAP
-> Intrusion upon seclusion
-> False Light
-> misAppropriation,
AND
-> public disclosure of Private facts
How does
-> intrusion upon seclusion
-> false light
-> misappropriation
-> public disclosure of private fact
Intrusion upon seclusion
-> D’s intentional intrusion into P’s private affairs
-> highly offensive to a reasonable person
-> no publication required
False light
-> publication of facts about P or attributing views/actions to P that place him in false light (unlike defamation, does not have to FALSE but misleading is okay)
-> objectionable to a reasonable person under circumstances;
-> truth not always a defense;
-> in matters of public interest, P must show malice
Misappropriation
-> unauthorizes use of P’s picture ornament for D’s advantage;
-> lack of consent;
-> injury (some states allow action to survive death)
Public disclosure of private facts
-> public disclosure of private facts (even if true) about P that would be highly offensive to a reasonable person
AND
-> is not of legitimate concern to the public
-> in tension with First Amendment - disfavored tort
What are the damages and defenses under invasion of privacy?
Damages
-> proof of emotional/mental distress enough
-> special damages not required
Defenses
-> absolute/qualified privilege for false light/public disclosure;
-> consent applies to all types of privacy torts, but any mistake re: consent negates defense;
-> truth NOT a defense
What are the elements of intentional misrepresentation and damages linked to it?
- False representation of material fact, opinion, intention, or law
-> generally no duty to disclose but there are exceptions (e.g. fiduciary duty)
-> Scienter -> knowledge or reckless disregard for truth - Intent to induce P to act or refrain from acting due to reliance on misrepresentation
- Causation - actual reliance
- Justifiable reliance - not justifiable if statement obviously false or law opinion
Damages
-> actual economic loss/consequential damages and punitive damages
-> no nominal damages
-> no damages for emotional distress
What is negligent misrepresentation?
What is required of the P to be able to recover under negligent misrepresentation?
What are the defenses?
What are the damages?
-> D provides false information to P as a result of D’s negligence in the course of D’s business or profession;
AND
-> P reasonably relies on the information and incurs pecuniary damages (aka economic loss) as a result
OR
-> D provides false information to P as a result of D’s negligence in circumstances posing risk of physical harm
AND
-> P reasonably relies on the information and suffers physical injuries
P
-> must be a member of a limited group for whose benefit the information is supplied
Information
-> must be relied on in a transaction that D intends to influence or knows recipient intends to, or substantially similar transaction
Defenses -> standard negligence defense
Damages -> reliance and consequential
Who are the Ps of intentional or negligent misrepresentation?
The plaintiffs are the people who are on the other side of the communication (aka receiving the communication).
What are the three intentional interference with business relations?
What are the defenses to each?
Intentional interference with contract
-> D knew of valid contractual relationship between P and third party
-> D intentionally interfered with contract in a way that substantially EXCEEDS fair competition and free expression, resulting in a breach
AND
-> breach caused damages to P
Defenses
-> justified if motivated by health, safety, or morals;
-> contract is terminable at will;
-> D is business competitor
Interference with prospective economic advantage (no contract) - more egregious conduct required for liability
-> should be independently tortious;
-> violates federal or state law;
-> improper conduct per balancing analysis
Defense
-> business competitor will not be liable for encouraging switching business
Theft of trade secrets
-> P owns valid trade secret (provides a business advantage)
-> Not generally known
-> reasonable precautions to protect
-> D took secret by improper means
