Defamation, Invasion of Privacy and Other Flashcards
Defamation, overview
A statement concerning P, made by D to a third person, that is harmful to P’s reputation
If statement involves a matter of public concern or a public figure or official, falsity and fault may be required
Elements of defamation
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Defamatory statement
- that adversely affects P’s reputation, must be specific, no name-calling
- Concerning P
- Publication (made public willingly or negligently)
- Harmful to P’s reputation
- Falsity & fault (ONLY REQUIRED PUBLIC CONCERN, FIGURE OR OFFICIAL)
Liability for republication?
Occurs when the republisher of a defamatory statement is liable to the same extent as the original publisher
What is Public? (Defamation and 1st amendment)
- Public Figure: one who has pervasive fame or notoriety, or who voluntarily assumes a central role in a public matter
- Public Official: public office holder
- Public concern matter: statement relates to a community interest or concern (include national interests)
Additional elements when public concern
- Falsity: P must prove the statement was false
- Fault: P must prove D was a fault
Fault standard, public vs private
Standards differ for public vs. private figures:
- Public official or figure - actual malice standard (knowledge of the statement’s falsity or reckless disregard to whether it was false)
- Private figure - negligence standard
Damages Consideration
Depends on whether the defamatory statement constitutes libel. slander or slander per se
- Libel - general damages are presumed P does not have to prove special damages (a written statement, TV and radio broadcast are libel)
- Slander - spoken defamatory statement, P must prove special damages unless the statement constitutes slander per se
-
Slander per se:
- Concerns and adversely reflects on P’s business or professional reputation
- Claims that P has a loathsome disease
- Claims that O committed a crime of moral turpitude, or
- Imputes a woman’s chastity
Defenses for defamation?
- Consent
- Remember P asking questions to D on public forum. If the question could create a defamatory truthful statement, is permitted
- Truth
- Privilege
Types of privilege (defense to defamation)
- Absolute privilege defenses - protects statements by govt. officials in their official capacity
-
Qualified privilege defenses - D’s liability for defamatory statements is limited if the purpose of the statement is to promote truthfulness and/or related to fair comment and criticism
- » E.g., letter of recommendation, employment reference, book review, accurate reports of public proceedings
Invasion of privacy torts
- Appropiation
- False light
- Intrusion upon seclusion and disclosure
Appropriation tort, overview
Use of P’s name or likeness for commercial purposes (e.g., promotion or advertisement) without P’s consent
- Newsworthy exception - no liability for use of P’s name or likeness for the purpose of reporting news
False light, tort
Widespread publication of a falsehood or material misrepresentation about P that would be highly offensive to a reasonable person
- Includes mischaracterization of P’s views or conduct
- Matters of public concerns - D must have actual malice or reckless disregard for the truth of the matter publicized
- No newsworthiness exception
Defenses (Appropiation & False light)
-
Consent - valid defense, although D may be liable if his actions exceed the consent given
- » Mistake as to if consent was given is not a valid defense
- Privilege - may be available as a defense to false light if D has an absolute or qualified privilege to publication
- Truth is not a valid defense to invasion of privacy claims
Intrusion upon seclusion
Intrusion upon P’s private affairs in a manner that would be highly offensive to a reasonable person.
- Requirements
- P must have a reasonable expectation of privacy (no expectation on public)
- Intrusion must be highly offensive (peeping, eavesdropping, hidden cameras)
Intrusion upon disclosure
Public disclosure of P’s private information
Requirements - disclosure must be:
- Highly offensive to a reasonable person - The act must not be public (e.g. disclosing that the mayor goes to the strip club)
- Publicized - made available to a public audience
Defenses to Intrusion to seclusion & disclosure
- Consent (both)
- Privilege (only to disclosure)
- Newsworthiness (only to disclosure)
Malicious prosecution
D initiates a frivolous charge or claim against P with an improper purpose (e.g., filing a false police report)
Requirements (Malicious prosecution)
- D commenced a prior criminal or civil legal proceeding against P
- Note - prosecutors are immune
- Prior proceeding terminated in P’s favor
-
No probable cause for the original proceeding
- I.e .. D knew P was not guilty (criminal) or liable (civil) or had insufficient facts to reasonably believe in P’s guilt or fault
- D had an improper purpose in initiating the proceeding
- Damages
Abuse of process
D uses the legal system as an ulterior purpose to threaten or act against P
Requirement (Abuse of process)
Elements:
- Wrongful use of process for an ulterior purpose
- Definite act or threat against P to accomplish an ulterior purpose
Misrepresentation (Intentional)
Misrepresentation by the defendant with scienter (knowledge of falsity or reckless disregard as to truth/falsity) and intent to induce reliance, causation (actual reliance on misrepresentation), justifiable reliance, and damages
Requirements:
- D misrepresents a past or present material fact
- D knows or believes the misrepresentation is false
- D intends to induce P to act or refrain from acting in reliance on the misrepresentation
- Actual reliance by P (causation)
- » P must actually rely on the misrepresentation
- Justifiable reliance by P
- » P must be justified in relying on the misrepresentation
- Damages - P must suffer monetary loss
Misrepresentation (Negligent)
Misrepresentation by the defendant in a business or professional capacity, breach of duty to the plaintiff, causation (actual reliance on misrepresentation), justifiable reliance, and damages
Elements
- D misrepresents a past or present material fact in a business or professional setting
- Breach of duty of care owed to a particular P (i.e., D knew P could rely on the misrepresentation)
- Actual and justifiable reliance by P
- Damages - P must suffer monetary loss
Interference with Business Relations
Arises when a third party interferes with an existing contract
Elements
- P has a valid contractual relationship or business expectancy
- » Includes contracts between Panda third party
- D has knowledge of the relationship or expectancy
- D intentionally interferes with that relationship
- » Must be intentional - negligence is insufficient
- D’s interference causes a breach or termination in P’s contract or expectancy
Damages
Defenses to Intentional Interference with business relations
Privilege: D’s conduct may be privileged when it is a proper attempt to obtain business or protect his interests
» E.g., competing for P’s customers
