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
-
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
Nuisance, what is?
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)
Private Nuisance, what is, and elements
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
Public nuisance
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.
Defenses to Nuisance
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
Vicarious Liability
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
Respondeat Superior
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.
Under Respondeat Superior, when an employer can be liable for the intentional torts of his employee
Normaly are excluded, unless part of the scope and:
- the job requires the use of force (bounder)
- the job entails creatin friction (bail bondsman), or
- the intentional tort is done to further the employer’s guard (security guard)
Independent contractors vicarious liability
Employers are normally NOT liable for torts committed by independent contractors. Unless:
- Act hired for is inherently dangerous
- The duty was not delegable
Partnership vicarious liability
Each partner is vicariously liable for any other partner’s torts committed within the scope of the partnership
Parent and child vicarious liability
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
Tavernkeepers vicarious liability
business serving alcohol may be held liable to a P injured by an intoxicated patron if the business was negligent in serving the patron
Joint and several liability
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
Can a P recover from one joint and several D and then the other?
No, if P recover fully from one D, she may not recover more from a jointly liable D
Contribution assertion (joint and several liability)
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
Indemnity in Joint and Several Liability
involves shifting the entire loss between or amongst Ds
Available by contract in vicarious liability situations, or under strict products liability
Who has absolute privilege in defamation?
- Remarks made in a judicial procedure
- Legislators on the legislate floor
- Federal executive official in “compelled” broadcast
- Between spouses
