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

Question 1

Defamation (elements)

Answer 1

1. Defamatory Statement + specifically identify P
2. Published to 3P
3. Falsity of defamatory language
4. Fault by defendant
5. Damage to Plaintiff’s repuation

Question 2

Defamatory Statement

Answer 2

Statement adversely affecting P’s reputation

Factual representation that reflects adversely on character

Pure statement of opinion is not defamatory - not subject to true/false test

Opinion only actionable if implies specific facts that could be defamatory.

Don’t have to use P’s name, any identifying info is sufficient.

P must be alive at the time the statement is made.

If statement is made about a small group of individuals = everyone has claim

If statement is made about large group = no one has claim.

Question 3

Statement must be published to 3P

Answer 3

Publication = communication of the defamation to 3P who understands it.

Publication can be made intentionally or negligently.

Publication must be to at least one other person beyond the plaintiff.

The requisite intent is to publish.

The more you share, the more defamation. Each repetition is a separate publication –> but if magazine, newspaper, etc., it is a single publication.

Question 4

Falsity

Answer 4

P required to prove statement is false –> negative truthful statements are not defamation.

Question 5

Fault on D’s Part

Answer 5

Some showing of fault is required –> fault is the degree of awareness the D had that a statement was false.

If D reasonably believed it was true, no fault.

Degree of Fault:
1. Private Person - must prove negligence if matter of private concern
2. Public Official/Figure - prove actual malice (knowledge or reckless disregard).

Question 6

Damages (Libel)

Answer 6

Libel: Defamation embodied in permanent form. No damages need to be proved because damages are presumed under libel.

Question 7

Damages (Slander)

Answer 7

Slander: Spoken/oral defamation

Slander per se: words so clearly defamatory that ordinary person would understand injury - damages presumed.

Slander per se categories:
1. statement relating to business/profession

2. P committed a serious crime
3. P engaged in serious sexual misconduct
4. P has a loathsome disease.

If one of these categories are met, proof of damages/evidence of harm not required; damages presumed.

If not slander per se category, must show damages (economic damages required - like losing job).

Question 8

Affirmative Defenses to Defamation

Answer 8

Consent - complete defense

Privileges - Absolute, Qualified

Question 9

Absolute Privileges

Answer 9

1. Communication between spouses
2. Officers of government in connection official work (executive, legislative, judicial)

Question 10

Qualified Privileges

Answer 10

Available on case-by-case basis when public interest in encouraging candor –> courts decide when to use qualified privileges.

Examples when qualified privileges have been enforced:
1. References and recommendations
2. Reports of public hearings or meetings
3. Statements made to those who are to take official action (I.e., statements made to a parole board about a prisoner)

4. Statements made to defend one’s own actions, property, or reputation.

Common Interest Privilege - Qualified privilege for statements made to colleague within same organizations.

Question 11

CL Privacy Includes four torts

Answer 11

1. Appropriation
2. Intrusion
3. False Light
4. Public Disclosure of Private Facts about P

Question 12

Appropriation

Answer 12

take something that doesn’t belong to you

D uses P’s NIL without permission for commercial use

Newsworthiness exception - picture in connection with story.

Not limited to celebrities

Emotional Damage

Right of Publicity: Economic damages

Question 13

Intrusion

Answer 13

invasion of P’s seclusion in a way that would be highly offensive to the reasonable person.

Must be in place with reasonable expectation of privacy.

Question 14

False Light

Answer 14

Dissemination of material falsehood about P that would be highly offensive to reasonable person.

P must show malice if matter of public interest.

Some false light scenarios are not defamation.

Question 15

Public Disclosure of Private Facts About P

Answer 15

widespread dissemination of confidential info about P not of legitimate concern to public and highly offensive to reasonable person.

Only applies if not of matter of public concern

Disclosure must be of a truly confidential fact.

Can’t have been disclosed to anyone if it is, then it’s not truly confidential

Question 16

Affirmative Defenses to Privacy Torts

Answer 16

Consent

Privileges (absolute and qualified)
1. False Light
2. Disclosure

Question 17

Misrepresentation

Answer 17

To establish a prima facie case for intentional misrepresentation requires:

1. misrepresentation of material past or present fact
2. scienter (when D 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 ( p must suffer actual pecuniary loss)

Question 18

Misrepresentation - 3P reliance

Answer 18

if a 3P relies on the D’s representation, the D will be liable if they could reasonably foresee that the 3P would so rely

Question 19

Misrepresentation - Duty to Disclose?

Answer 19

There is no general duty to disclose a material fact, unless the D:

1. stands in a fiduciary relationship to the P;
2. is selling real property and knows the P is unaware of, and cannot reasonably discover, material information about hte transaction; or
3. has spoken and their utterance deceives the P.

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

Question 20

Negligent Misrepresentation

Answer 20

A prima Facie case for negligent misrepresentation requires:

1. Misrepresentation by the D in a business or professional capacity.
2. Breach of duty toward a particular P
3. Causation
4. Justifiable reliance
5. Damages