Defamation, Invasion of Privacy, and Other Harm to Economic and Dignitary Interests

Question 1

OVERVIEW:

Answer 1

1) defamation
a) defamatory statement
b) statement must specifically identify plaitniff
c) publication
d) falsity
e) fault on D’s fault
f) damage to P’s reputation
g) defense to defamation
h) mitigating factors

2) Invasion of right to privacy
a) appropriation of P’s picture or name
b) publication of facts placing P in false light
c) public disclosure of private facts about P
d) defenses

3) Misrepresentation
a) intentional misrepresentation (fraud, deceit)
b) negligent misreprentation

4) Interference with Business relations
a) privileges

Question 2

1) Defamation - ELEMENTS

Answer 2

The elements for defamation are:
1) a DEFAMATORY STATEMENT THAT SPECIFICALLY IDENTIFIES the plaintiff

2) PUBLISHED to a third party

3) FALSITY of the defamatory language

4) FAULT on the part of the defendant

5) DAMAGE to the Plaintiff’s reputation

Question 3

1) “defamatory statement” - defamation

Answer 3

a defamatory statement is one tending to ADVERSLY AFFECT one’s reputation.

A statement of opinion is actionable only if it appear to be based on specific facts. An express allegation of those facts would be defamatory.
Name calling is sufficient

Question 4

defamatory statement - inducement and innuendo (if not defamatory on its face)

Answer 4

if the statement is NOT defamatory on its face - the Platinfif may plead additional facts as “inducement” to establish defamatory meaning by “innuendo”

Question 5

defamatory statement - living person requirement

Answer 5

any living person may be defamed.

Defamation of a deceased person is NOT actionable

In limited sense - corporation, unincorporated association, or partnership may be defamed (i.e. to its financial condition, honesty, integrity etc.)

Question 6

1) …“that identifies the platiniff”

Answer 6

the plating must establish that a reasonable reader, listener, or viewer would understand that the defamatory statement referred to the Plaitniff

Question 7

identifying the plaintiff – a) colloquim (does not reference P on its face)

Answer 7

if the statement does NOT refer to the P on its face, extrinsic evidence may be offered to establish that the statement refers to the P

**this is known as pleading “colloquium”

Question 8

identifying the plaintiff - b) group defamation

*if refers to all members

Answer 8

if the defamatory statement refers to ALL members of a SMALL group - each member may establish that the statement specifically identifies them – by alleging that they are a group member

Question 9

group defamation - if refers to SOME members

Answer 9

If the statement only refers to some members of a small group, the plaintiff can recover if a reasonable person would view the statement as referring to the plaintiff

Question 10

group defamation - large group

Answer 10

If the statement is about a large group, no member can prove that the statement specifically identifies them, in that case, no one wins!

Question 11

2) “PUBLISHED to a third party”

Answer 11

publication means communication of the defamation to a THIRD PERSON who UNDERSTANDS IT
- can be made either INTENTIONALLY or NEGLIGENTLY

*have to demonstrate that the defendant had the requisite intent to PUBLISH (not necessarily intend to defame)

Each repetition is a separate publication. However, for magazines, newspapers, etc., most states have adopted a “single publication rule,” under which all copies are treated as one publication.

Question 12

is “publication” made when the defendant makes defamatory statement about the Plaintiff to the Plaintiff? (and only heard by Plaintiff)?

Answer 12

As a general rule, in the situation, there is no publication, and there’s no defamation

Question 13

who may be liable??

Answer 13

Primary publishers (for example, newspapers, TV stations, etc.) are liable to the same extent as the author or speaker.

One who repeats a defamation is liable on the same general basis as the primary publisher (even if she states the source or makes it clear that she does not believe the defamation).

One selling papers or playing audio files is a SECONDARY publisher and is liable ONLY if he knows or should know of the defamatory content.

An Internet service provider is not treated as a publisher when a user of its service posts defamatory content.

Question 14

3) FALSITY of the defamatory language

Answer 14

COMMON LAW - P did not have to prove that the statement was false - but the D was obliged to prove truth as a defense

many states have altered this rule - requiring the P to prove falsity as it case in chief.
Even in states that still follow the traditional rule, the plaintiff must prove falsity in any case where the plaintiff is constitutionally obligated to prove fault.

Question 15

4) FAULT on the part of the defendant

Answer 15

A majority of states require a showing of fault on the part of the defendant.

In addition, there are constitutional limitations depending on the plaintiff’s status.

Question 16

a) public official or figure - must prove ACTUAL MALICE

Answer 16

NEW YORK TIMES V. SULLIVAN - actual malice must be proved in defamation cases brought by PUBLIC OFFICIALS and PUBLIC FIGURES

Question 17

What constitutes a “public figure”?

Answer 17

a person becomes a public figure by:
a) achieving pervasive fame or notoriety, or
b) by voluntary assuming a central role in a particular public controversy

Question 18

what is ‘actual malice’?

Answer 18

actual malice is:
a) KNOWLEDGE that the statement was false; OR
b) RECKLESS DISREGARD as to whether it was false

**SUBJECTIVE test - D’s spite or ill will is NOT enough to constitute malice.

Deliberately altering a quotation may constitute malice if the alteration causes a MATERIAL CHANGE in the meaning conveyed by the quotation

Question 19

b) private persons + public concern

Answer 19

Gertz v. Welch - when a private person is the Plaintiff, only nEGLIGENCE regarding the falsity must be proved if the statement involves a matter of PUBLIC CONCERN

If the statement is NOT a matter of public concern, constitutional restrictions do not apply, (but note that many states require a showing of negligence as a matter of state law.)

If the defendant is negligent, only “ACTUAL INJURY” damages are recoverable. However, if actual malice is found, damages may be presumed, and punitive damages allowed.

Question 20

what constitutes ‘actual injury’?

Answer 20

actual injury is nOT limited to economic damages. It may include damages for impairment to reputation and personal humiliation as long as the P presents evidence of such damages (i.e. no presumed damages)

Question 21

what is a ‘matter of PUBLIC concern’?

Answer 21

To determine whether the defamatory statement involves a matter of public concern or private concerned, the courts will look at the content, form, and context of the publication

Question 22

When does it matter to assess whether the plaintiff is a public figure or a private person?

Answer 22

The status of the plaintiff is relevant only for the degree of fault required

Question 23

5) “DAMAGE to the Plaintiff’s reputation”

Answer 23

The type of damages the plaintiff must prove depends on the type of defamation (libel or slander) involved.

LIBEL –> Damages generally are presumed under the law of libel.

SLANDER –> In some slander cases, the plaintiff must prove that they suffered special damages—that is, they must have suffered some pecuniary loss in order to recover anything.
—-> But once the plaintiff has proved special damages, they may recover general damages as well.

Question 24

what types of defamation are there?

Answer 24

1) libel
2) slander

Question 25

what is libel?

Answer 25

libel is defamation that is EMBODIED in PERMANENT form
– often a written or printed publication of defamatory language.

Defamation in radio and television programs is treated by most courts today as libel.

Question 26

what does the P have t prove in order to recover under libel?

Answer 26

The plaintiff typically does not need to prove special damages to recover and general damages are presumed.
(A minority of courts will presume general damages only if the statement is defamatory on its face (libel per se) and require proof of special damages if the statement requires reference to extrinsic facts to establish its defamatory nature (libel per quod).)

Question 27

what is slander?

Answer 27

slander is SPOKEN defamation

Question 28

what must the P prove in slander cases in order to recover?

Answer 28

The plaintiff must prove SPECIAL damages - unless the defamation falls within one of the SLANDER PER SE categories

Question 29

what is slander per se?

Answer 29

they are categories of defamatory statements that:
a) Adversely reflect on the plaintiff’s business or profession

b) State that the plaintiff has committed a serious crime (this includes most common law crimes and is sometimes referred to as crimes involving “moral turpitude”)

c) Impute that the plaintiff has engaged in serious sexual misconduct

d) State that the plaintiff has a loathsome disease

**P does ot have to prove special damages in slander per se cases

Question 30

VIRGINIA DISTINCTION

Answer 30

In Virginia, no distinction is made between libel and slander. Dam- ages are presumed if in one of the slander per se categories.

Question 31

g) defense to defamation

Answer 31

a) consent
b) truth
c) privilege

Question 32

a) consent (defense to defamation)

Answer 32

consent is a COMPLETE DEFENSE to defamation.

The rules relating to consent to inteintoal torts apply here

Question 33

b) truth

Answer 33

In cases where the plaintiff is not obligated to prove falsity of the statement as part of their own case, the defendant may prove truth as a complete defense.

Question 34

c) privilege- what are the 2 types of privilege?

Answer 34

1) absolute privilege
2) qualified privilege

Question 35

1) absolute privilege

Answer 35

absolute privilege can NEVER be lost.

The defendant may be protected by an absolute privilege for the following:
a) communications between SPOUSES
b) remarks made during JUDICIAL proceedings, by legislators during proceedings (even if not related to the proceeding), by federal EXECUTIVE officials in “compelled” broadcasts

Question 36

what is ‘qualified privilege’?

Answer 36

qualified privilege can be lost through abuse
A qualified privilege arises only when there is a PUBLIC INTEREST in encouraging CANDOR.

Question 37

who bears burden in demonstrating that a qualified privilege exists?

Answer 37

The defendant bears the burden of proving that a privilege exists.

Whether a speaker has a qualified privilege will be determined on a case-by-case basis.

The qualified privilege may be lost if the statement is not within the scope of the privilege or it is shown that the speaker acted with actual malice.
Some possible examples include:
- References and recommendations
-Reports of public hearings or meetings
- Statements made to those who are to take officiall action (for example, statements made to a parole board about a prisoner)
- Statements made to defend one’s own actions, property, or reputation

Question 38

h) what are mitigating factors that may be considered?

Answer 38

Mitigating factors (for example, no malice, retraction, anger of the speaker provoked by the plaintiff) may be considered by the jury on the damages issue; they are not defenses to liability.

Question 39

2) invasion of right to privacy

Answer 39

The right of privacy is a PERSONAL right and does not extend to members of a family, does not survive the death of the plaintiff, and is not assignable.

The right of privacy is not applicable to corporations.

The invasion of the plaintiff’s interest in privacy must have been PROXIMATELY caused by the defendant’s conduct.

The plaintiff need not plead and prove special damages. Emotional distress and mental anguish are sufficient damages.

Question 40

what type of four kinds of wrong does the invasion of right to privacy include?

Answer 40

1) Appropriation of the plaintiff’s picture or name

2) Intrusion on the plaintiff’s affairs or seclusion

3) Publication of facts placing the plaintiff in a false light

4) Public disclosure of private facts about the plaintiff

Question 41

VA DISTINCTION

Answer 41

Virginia has codified just one branch of invasion of privacy: Appropriation of the plaintiff’s name or likeness for the defendant’s commercial gain.

The other three branches of the common law tort of invasion of privacy were not included in the statute. Hence, the legislature has implicitly rejected them as viable causes of action in Virginia.

Question 42

1) appropriate of P’s picture or name

Answer 42

It is necessary to show unauthorized use of the plaintiff’s picture or name for the defendant’s commercial advantage.

Liability is generally limited to advertisements or promotions of products or services. Mere economic benefit to the defendant (not in connection with promoting a product or service) by itself is not sufficient.

Question 43

2) intrusion on P’s affairs or seclusion

Answer 43

This claim forbids such acts as eavesdropping, spying, interception of phone calls or electronic communications, and other similar conduct.

The act of prying or intruding must be HIGHLY OFFENSICE to a reasonable person.

Furthermore, the thing into which there is an intrusion must be “PRIVATE.”

Photographs taken in public places are not actionable.

Question 44

3) publication of facts placing P in false light

Answer 44

False light” exists where one attributes to the plaintiff views they do not hold or actions they did not take.

The false light must be something highly offensive to a reasonable person under the circumstances.

For liability to attach, the defendant must circulate the statement to the public at large. Sharing the statement with only one or a few persons will not be sufficient to trigger liability.

Question 45

what is a first amendment limitation on publication of facts placing P in false light?

Answer 45

If the matter is of public interest, actual malice on the defendant’s part must be proved.

Question 46

4) public disclosure of private facts about P

Answer 46

This wrong involves public disclosure of private information about the plaintiff for example, matters of public record are not sufficient).

The public disclosure must be highly offensive to a reasonable person of ordinary sensibilities.

Liability may attach even though the actual statement is true.

First Amendment limitations probably apply if the matter is of legitimate public interest.

Question 47

DEFENSES to right of privacy actions

Answer 47

a) consent
b) defamation privilege defenses

truth - generally NOT a good fdefense, nor is inadvertence, good faith, or lack of malice

Question 48

3) Misrepresentation

Answer 48

a) intentional misrepresentation (fraud, deceit)
b) negligent misreprentation

Question 49

a) intentional misrepresentation (fraud, deceit)

Answer 49

To establish a prima facie case for intentional misrepresentation requires:
1) Misrepresentation of a material past or present fact

2) Scienter (when the defendant made the statement, they knew or believed it was false or that there was no basis for the statement)

3) Intent to induce the plaintiff to act or refrain from acting in reliance upon the misrepresentation

4) Causation (actual reliance)

5) Justifiable reliance

6) Damages (the plaintiff must suffer actual pecuniary loss)

There are no defenses to intentional misrepresentation.

Question 50

no general duty to disclose

Answer 50

There is no general duty to disclose a material fact, unless the defendant
(1) stands in a fiduciary relationship to the plaintiff
(2) is selling real property and knows the plaintiff is unaware of, and cannot reasonably discover, material information about the transaction; or
(3) has spoken and their utterance deceives the plaintiff

Physical concealment of a material fact may also constitute a misrepresentation.

Question 51

third party reliance

Answer 51

If a third party relies on the defendant’s representation, the defendant will be liable if they could reasonably foresee that the third party would so rely.

Question 52

reliance on opinion

Answer 52

Reliance generally is justifiable only on representations of fact (and the plainti is under no obligation to investigate the fact). Reliance on opinion is justifiable only if the defendant oering the opinion has a superior knowledge of the subject matter.

Question 53

b) negligent misrepresentation

Answer 53

A prima facie case for negligent misrepresentation requires:

1) Misrepresentation by the defendant in a business or professional capacity

2) Breach of duty toward a particular plaintiff

3) Causation

4) Justifiable reliance

5) Damages

Question 54

negligent misrepresentation - limitations

Answer 54

Generally, this action is confined to misrepresentations made in a commercial setting, and liability will attach only if reliance by the particular plaintiff could be contemplated (for example, for negligent misrepresentation, foreseeability that the statement will be communicated to a third party does not make the defendant liable to the third party).

Question 55

4) interference with business relations

Answer 55

To establish a prima facie case for interference with business relations, the following elements must be proved:

1) Existence of a valid contractual relationship between the plaintiff and a third party or valid business expectancy of the plaintiff

2) The defendant’s knowledge of the relationship or expectancy

3) Intentional interference by the defendant inducing a breach or termination of the relationship or expectancy

4) Damages

Question 56

privileges

Answer 56

The defendant’s conduct may be privileged if it is a proper attempt to obtain business for itself or protect its interests.

A privilege is more likely to be found if the defendant:
(1) interfered only with the plaintiff’s prospective business rather than with existing contracts;

(2) used commercially acceptable means of persuasion rather than illegal or threatening tactics;

(3) is a competitor of the plaintiff seeking the same prospective customers; or

(4) has a financial interest in or responsibility for the third party, or is responding to the third party’s request for business advice.

Question 57

VA DISTINCTION - RETALIATORY DISCHARGE

Answer 57

Retaliatory Discharge
Even though “at-will” employees generally may be terminated for no reason, Virginia recognizes a common law action for retaliatory discharge in three narrow categories:
(1) When an employer violates a public policy enabling the employee’s exercise of a right created by statute;

(2) When an employer violates a public policy explicitly expressed in a statute, and the employee is a member of the class of per- sons entitled to the protection intended by the public policy; and

(3) When the discharge is based on the employee’s refusal to engage in a criminal act.