Defamation, Invasion of Privacy and Other

Question 1

Defamation, overview

Answer 1

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

Question 2

Elements of defamation

Answer 2

1. Defamatory statement
   
   • that adversely affects P’s reputation, must be specific, no name-calling
2. Concerning P
3. Publication (made public willingly or negligently)
4. Harmful to P’s reputation
5. Falsity & fault (ONLY REQUIRED PUBLIC CONCERN, FIGURE OR OFFICIAL)

Question 3

Liability for republication?

Answer 3

Occurs when the republisher of a defamatory statement is liable to the same extent as the original publisher

Question 4

What is Public? (Defamation and 1st amendment)

Answer 4

1. Public Figure: one who has pervasive fame or notoriety, or who voluntarily assumes a central role in a public matter
2. Public Official: public office holder
3. Public concern matter: statement relates to a community interest or concern (include national interests)

Question 5

Additional elements when public concern

Answer 5

1. Falsity: P must prove the statement was false
2. Fault: P must prove D was a fault

Question 6

Fault standard, public vs private

Answer 6

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

Question 7

Damages Consideration

Answer 7

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

Question 8

Defenses for defamation?

Answer 8

1. Consent
   
   • Remember P asking questions to D on public forum. If the question could create a defamatory truthful statement, is permitted
2. Truth
3. Privilege

Question 9

Types of privilege (defense to defamation)

Answer 9

• 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

Question 10

Invasion of privacy torts

Answer 10

1. Appropiation
2. False light
3. Intrusion upon seclusion and disclosure

Question 11

Appropriation tort, overview

Answer 11

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

Question 12

False light, tort

Answer 12

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

Question 13

Defenses (Appropiation & False light)

Answer 13

• 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

Question 14

Intrusion upon seclusion

Answer 14

Intrusion upon P’s private affairs in a manner that would be highly offensive to a reasonable person.

• Requirements
  
  1. P must have a reasonable expectation of privacy (no expectation on public)
  2. Intrusion must be highly offensive (peeping, eavesdropping, hidden cameras)

Question 15

Intrusion upon disclosure

Answer 15

Public disclosure of P’s private information

Requirements - disclosure must be:

1. Highly offensive to a reasonable person - The act must not be public (e.g. disclosing that the mayor goes to the strip club)
2. Publicized - made available to a public audience

Question 16

Defenses to Intrusion to seclusion & disclosure

Answer 16

1. Consent (both)
2. Privilege (only to disclosure)
3. Newsworthiness (only to disclosure)

Question 17

Malicious prosecution

Answer 17

D initiates a frivolous charge or claim against P with an improper purpose (e.g., filing a false police report)

Question 18

Requirements (Malicious prosecution)

Answer 18

1. D commenced a prior criminal or civil legal proceeding against P
   
   • Note - prosecutors are immune
2. Prior proceeding terminated in P’s favor
3. 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
4. D had an improper purpose in initiating the proceeding
5. Damages

Question 19

Abuse of process

Answer 19

D uses the legal system as an ulterior purpose to threaten or act against P

Question 20

Requirement (Abuse of process)

Answer 20

Elements:

1. Wrongful use of process for an ulterior purpose
2. Definite act or threat against P to accomplish an ulterior purpose

Question 21

Misrepresentation (Intentional)

Answer 21

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:

1. D misrepresents a past or present material fact
2. D knows or believes the misrepresentation is false
3. D intends to induce P to act or refrain from acting in reliance on the misrepresentation
4. Actual reliance by P (causation)
   
   • » P must actually rely on the misrepresentation
5. Justifiable reliance by P
   
   • » P must be justified in relying on the misrepresentation
6. Damages - P must suffer monetary loss

Question 22

Misrepresentation (Negligent)

Answer 22

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

1. D misrepresents a past or present material fact in a business or professional setting
2. Breach of duty of care owed to a particular P (i.e., D knew P could rely on the misrepresentation)
3. Actual and justifiable reliance by P
4. Damages - P must suffer monetary loss

Question 23

Interference with Business Relations

Answer 23

Arises when a third party interferes with an existing contract

Elements

1. P has a valid contractual relationship or business expectancy
   
   • » Includes contracts between Panda third party
2. D has knowledge of the relationship or expectancy
3. D intentionally interferes with that relationship
   
   • » Must be intentional - negligence is insufficient
4. D’s interference causes a breach or termination in P’s contract or expectancy
   Damages

Question 24

Defenses to Intentional Interference with business relations

Answer 24

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

Question 25

Nuisance, what is?

Answer 25

Tortious invasion of either public or private property rights. Nuisance is a harm caused by a tort, not the tort itself

Can be private vs public depending if the affected person is an individual (private) or a community (public)

Question 26

Private Nuisance, what is, and elements

Answer 26

A substantial and unreasonable interference with another individual’s use of enjoyment of her property

Substantial: Must be offensive, annoying or inconvenient to the average person. Average is not people with hypersensitiveness or that uses property for abnormal purposes

Unreasonable: Severity of P’s injury must outweigh the utility of D’s conduct

Question 27

Public nuisance

Answer 27

Unreasonable interference with health, safety or property rights of the community at large.

An individual can only recover if he suffered a unique damage. Otherwise he cannot recover by himself.

Question 28

Defenses to Nuisance

Answer 28

P cannot recover if he “came to the nuisance” (e.g., bought property next door) for the sole purpose of bringing suit

Contributory negligence is also available if P asserts a negligence theory and acted negligently in creating the nuisance

Question 29

Vicarious Liability

Answer 29

Arises when D commits a tort against P and a third person is held liable due to his relationship with D.

Employees (respondeat superior), independent contractors, partners, parent and child and tavern keepers

Question 30

Respondeat Superior

Answer 30

Employers are liable for torts committed by employees within the scope of their employment

When there is a detour from the scope, the employer is liable

When there is a frolic, the employer is not liable.

Question 31

Under Respondeat Superior, when an employer can be liable for the intentional torts of his employee

Answer 31

Normaly are excluded, unless part of the scope and:

1. the job requires the use of force (bounder)
2. the job entails creatin friction (bail bondsman), or
3. the intentional tort is done to further the employer’s guard (security guard)

Question 32

Independent contractors vicarious liability

Answer 32

Employers are normally NOT liable for torts committed by independent contractors. Unless:

1. Act hired for is inherently dangerous
2. The duty was not delegable

Question 33

Partnership vicarious liability

Answer 33

Each partner is vicariously liable for any other partner’s torts committed within the scope of the partnership

Question 34

Parent and child vicarious liability

Answer 34

Parents are NOT liable for their children’s torts. BUT parents may be separately negligent if the had a reason to know of a child’s propensity to injure someone or facilitated the tort

Question 35

Tavernkeepers vicarious liability

Answer 35

business serving alcohol may be held liable to a P injured by an intoxicated patron if the business was negligent in serving the patron

Question 36

Joint and several liability

Answer 36

Two or more Ds combined produce a single indivisible injury, and therefore must pay the recovery jointly

Each of the D’s conduct was a factor in bringing about P’s injury. Therefore they each pay whole recovery if P sues them

Question 37

Can a P recover from one joint and several D and then the other?

Answer 37

No, if P recover fully from one D, she may not recover more from a jointly liable D

Question 38

Contribution assertion (joint and several liability)

Answer 38

A D that paid more than her share of damages under joint and several liability can assert a claim against jointly liable parties for the excess paid

If the tort was intentional, this is not applicable.

Contribution is based in proportion of the relative fault

Question 40

Indemnity in Joint and Several Liability

Answer 40

involves shifting the entire loss between or amongst Ds

Available by contract in vicarious liability situations, or under strict products liability

Question 41

Who has absolute privilege in defamation?

Answer 41

1. Remarks made in a judicial procedure
2. Legislators on the legislate floor
3. Federal executive official in “compelled” broadcast
4. Between spouses