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
Publication - 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
Falsity (public concern)
-> if statement relates to matter of public concern or P is a public figure, P must prove defamatory statement is false
-> 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
Fault
-> public figure - actual malice (D knows of falsity/reckless disregard for 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
What’s the difference between libel and slander?
Libel - written, printed, or otherwise recorded in permanent form; general damages that compensate P for harm to reputation (generally includes radio and television)
-> common law allowed recovery for presumed damages
-> libel per quod - if defamatory statement requires proof of extrinsic facts to show it is defamatory, P must prove either special damages or a category of slander per se
Slander - spoken word, gesture, or any for other than libel; special damages or slander per se required; third party heard comments and acted adversely to P; usually, but not always; economic loss
Slander per se - no special damages required if accused of committing a crime, conduct that reflects poorly on P’s fitness to conduct trade or profession, loathsome diseases, sexual misconduct; general damages then permitted 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
Consent - cannot exceed scope
Absolute privilege - for remarks: (i) during judicial/legislative proceedings(generally must be made by participants and related to proceedings); (ii) by legislation or federal/state executive officials in course of official duties; (iii) between spouses; or (iv) in required publications
Qualified privilege - affecting important public interest, in the interest of D or third party; privilege is lost if abused; burden on D to prove privilege exists; burden on P to prove privilege abused and lost
What is invasion of privacy?
I FLAP
-> Intrusion, False Light, Appropriation, Private facts)
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 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
Scienter -> knowledge or reckless disregard for truth
- Intent to induce P to act or refrain in 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 are the elements, defenses and damages for negligent misrepresentation?
D provides false information to P as a result of D’s negligence in the course of D’s business or profession; and
P justifiable relies on the information and incurs pecuniary damages as a result
-> 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
What are the three intentional interference with business relations?
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
-> 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
What are the two types of injurious falsehoods?
Trade libel -> malicious publication of derogatory statement relating to P’s title to business property/quality of products, and interference or damage to business relationships; proof of special damages required and mental suffering damages unavailable; truth and fair competition are valid defenses
Slander of title -> publication of false statement derogatory to P’s title to real property; malice; special damages as a result of diminished value in the eyes of third parties
What are the two types of wrongful use of legal system?
Malicious prosecution - intentional and malicious institution of legal proceeding for improper purpose; nor probably cause; action dismissed in favor of the person against whom it was brought
-> damages can include legal expenses, lost work time, loss of reputation, emotional distress
-> judges and prosecutors have absolute immunity from liability
Abuse of process - use of legal process against P in a wrongful manner to accomplish a purpose other than that for which the process was intended; willful act; proof of damages required
