Defamation, Invasion of Privacy, and Other Harm to Economic/Dignitary Interests (Module 16)

Question 1

Elements of Defamation Claim

Answer 1

1) defamatory statement that specifically identifies the P
2) published to a 3rd party
3) falsity
4) D was at fault
5) P’s reputation damaged

Question 2

Defamatory Statement that Specifically Identifies P (Element 1)

Answer 2

Defamatory statement
- any statement adversely affecting reputation
- opinion statements aren’t actionable unless the imply specific facts
- name calling is not defamatory

Identifies the P
- doesnt have to be by name
- if it’s a small group everyone can have a claim, if large prob no one can
- a deceased person cannot be defamed

Question 3

Publication to a 3rd Party (Element 2)

Answer 3

Communication to a third person who understands it; only needs to be shared with ONE person, but can’t just be said to P alone

Publication doesn’t have to be intentional, can be negligent (accidentally leave intercom on when having a 1 on 1 convo)

Newspapers, TV stations, etc. (but not ISPs) are all liable to teh same extent as the author/speaker

Question 4

Falsity (Element 3)

Answer 4

P is responsible to show that the statement is false as part of their case in chief

used to be that D had to show truth as defense but that’s now a minority

Question 5

Fault on Part of D (Element 4)

Answer 5

• Public figures/officials - actual malice (knowledge/reckless disregard for the truth)
• Private figures/ matters of public concern: have to show negligence
• Private figures/private concern: no defamation claim

Public concern = courts look at the content, form, and context of the publication

Question 6

Damage to P’s Reputaion (Element 5)

Answer 6

• Depends on the form of defamation (libel, slander, slander per se)
• For libel or slander per se damages are presumed (i.e., P doesn’t have to show evidence)
• For slander that’s not slander per se, P has to show economic damages

Question 7

Libel

Answer 7

Defamation embodied in a permanent form (written, recorded, etc.)
Damages are presumed

Question 8

Slander and Slander per se

Answer 8

Slander: spoken/oral defamation; P needs to show economic damages

Slander per se: four types of slander where damages are presumed
1) adversely reflects on P’s business/profession
2) serious crime (crimes of “moral turpitude”)
3) serious sexual misconduct
4) loathsome disease

Question 9

Defenses to Defamation

Answer 9

1) Consent (complete defense)
2) Truth (complete defense)
3) Privilege (Absolute and Qualified)
- Absolute: marital communications & judicial/legis/exec proceedings
- Qualified: when there is a public interest in encouraging candor; is a case-by-case basis

D can show mitigating factors (no malice, retraction, anger provoked by P) to be considered in allocating damages but is not a defense

Question 10

Types of Invasion of Right to Privacy (Tort)

Answer 10

FIDA

1) Appropriation of P’s name/image for a commercial advantage (exception for newsworthiness like printing on front page of newspaper)
2) Intrusion of P’s seclusion in highly offensive to ordinary people (eavesdropping, camera in AirBnB) (must be in place where have rxble expectation of privacy)
3) False Light i.e., dissemination of material falsehood about P that would be highly offensive to rxble person (overlaps with defamation but damages for false light are emotional)
4) Disclosure of private info about P that would be highly offesnive to a rxble person (newsworthiness is an exception, why tabloids exist)
- must be truly confidential (outting someone to their work when their friends already know isn’t truly confid)