Defamation, Invasion of Privacy, & Other Harm to Economic & Dignitary Interests Flashcards
1
Q
Defamation
A
- Elements:
(1) Defamatory statement specifically identifies P
(2) Published to 3rd party
(3) Damage to P’s reputation
(4) Falsity of defamatory language
(5) Fault on D
2
Q
Defamatory Statement
A
- Adversely affects one’s reputation.
- Statement of opinion is actionable only if based on specific facts
- Name-calling is insufficient.
3
Q
DS: Inducement & Innuendo
A
- If statement is not defamatory on its face, P
may offer additional facts to show defamatory meaning by “innuendo.”
4
Q
DS: Living Person Requirement
A
- Any living person may be defamed.
- Defamation of a deceased person is not actionable.
- In a limited sense, a corp, unincorporated association, or partnership may be defamed (ex. by remarks as to its financial condition, honesty, integrity, etc.).
5
Q
Statement Must Specifically Identify P
A
- P must show that a reasonable reader, listener or viewer would understand that defamatory statement referred to P
6
Q
Colloquium
A
- If statement does not refer to P on its face, extrinsic evidence may be offered to show statement refers to P
- Pleading “colloquium.”
7
Q
Group Defamation
A
If defamatory statement refers to all members of a
small group, each member can show that statement specifically identifies them by alleging that they are a group member (every member of that small group wins!).
* If statement only refers to some members of a small group, P can recover if a reasonable person would view statement as referring to P
* If statement is about a large group, no member can prove that statement specifically identifies them (no one wins!).
8
Q
Publications
A
- Publication means communication of defamation to 3rd person who understands it.
- Can be made intentionally/ negligently.
- It is intent to publish, not intent to defame, that is requisite intent.
- Each repetition is a separate publication.
- However, for magazines, newspapers, etc., most states have adopted a “single publication” rule where all copies are treated as one publication.
9
Q
Tip:
A
- An exam favorite is the situation where defamatory statement about P is made only to P. As a general rule, in this situation there is no publication & thus no defamation.
10
Q
Publication: Whom May be Liable
A
-Primary publishers (ex. newspapers, TV stations etc.) are liable to same extent as author/speaker.
- One who repeats a defamation is liable on same general basis as primary publisher (even if she states the source/ makes it clear that she does not believe defamation).
- One selling papers/playing audio files is a secondary publisher & is liable only if he knows/should know of defamatory content.
- An Internet service provider is not treated as a publisher when user of its service posts defamatory content.
11
Q
Damage to P’s Reputation
A
- Damages P must prove depends on type of defamation (libel/slander) .
- Damages generally are presumed for libel.
- In some slander cases, P must prove they suffered special damages (some pecuniary loss in order to recover anything)
- Once P has proved special damages, they may recover general damages as well.
12
Q
Libel
A
- Libel is a defamation that is embodied in permanent form.
- It is often a written/printed publication of defamatory language.
- Defamation in radio & television programs is
treated by most cts today as libel. - P typically does not need to prove special damages to recover & general damages are presumed.
13
Q
Slander
A
- Slander is spoken defamation.
- P must prove special damages, unless defamation falls w/in one of the slander per se categories.
- These are defamatory statements that:
(1) Adversely reflect on P’s business/profession
(2) State that P has committed a serious crime (includes most CL crimes & is sometimes referred to as crimes involving “moral turpitude”)
(3) Impute that P has engaged in serious sexual
misconduct
(4) State that P has a loathsome disease
14
Q
Falsity
A
- Under CL, P did not have to prove statement was false.
- Rather D was obliged to prove truth as a defense.
- Many states have altered that rule & now require P to prove falsity as part of case-in-chief.
- Even in states that still follow CL, P must prove falsity in any case where P is constitutionally obligated to prove fault
15
Q
Tip:
A
- If you see a true statement on exam, consider if P may have COA for IIED/invasion of right to privacy (unless P is a public figure/a matter of public concern is involved).
16
Q
Fault on D’s Part
A
- A majority of states require a showing of fault on part of D.
- In addition, there are con limits depending on P’s status.
17
Q
Public Official/Figure Must Prove Actual Malice
A
- Actual malice must be proved in defamation cases brought by public officials & public figures.
18
Q
What Constitutes a Public Figure
A
- A person becomes a “public figure” by achieving pervasive fame/notoriety/by voluntarily assuming a central role in a particular public controversy.
19
Q
Definition of Actual Malice
A
- Actual malice:
(1) Knowledge that statement was false OR
(2) Reckless disregard as to whether it was false - This is a subjective test. D’s spite/ill will is not enough to constitute malice.
- Deliberately altering a quotation may constitute malice if alteration causes a material change in meaning conveyed by quotation.
20
Q
Private Persons Must Prove Negligence If Matter of Public Concern
A
- Gertz v. Welch, when private person is P, only negligence regarding falsity must be proved if statement involves a matter of “public concern.”
- If statement is not a matter of public concern, const restrictions do not apply (but note that many states require a showing of negligence as a matter of state law).
- If D is negligent, only “actual injury” damages are recoverable.
- However, if actual malice is found, damages may be
presumed, and punitive damages allowed. - Actual injury is not limited to economic damages. May include damages for impairment to reputation & personal humiliation If P presents evidence of such damages (no presumed damages).
21
Q
Tip:
A
- Note that the status of P (public figure/private person) is relevant only for the degree of
fault required.
22
Q
Defenses to Defamation : Consent
A
Consent is a complete defense. The rules relating to consent to intentional torts apply here.
23
Q
Defenses to Defamation: Truth
A
- In cases where P is not obligated to prove falsity of the statement as part of their own case (CL defamation), D may prove truth as a complete defense.
24
Q
Defenses to Defamation: Absolute Privilege
A
- D may be protected by an absolute privilege for:
- Communications between spouses
- Remarks made during judicial proceedings, by legislators during proceedings (even if not related to proceedings), by fed executive officials, in “compelled” broadcasts
- Can never be lost
25
Q
Defenses to Defamation: Qualified Privilege
A
- A qualified privilege arises only when there is a public interest in encouraging candor.
- D bears burden of proving privilege exists.
- Whether a speaker has a qualified privilege will be determined on a case-by-case basis.
- Qualified privilege may be lost if statement is not w/in scope of privilege/it is shown that speaker acted w/ actual malice.
- Some possible ex:
- References & recommendations
- Reports of public hearings/meetings
- Statements made to those who are to take official action (ex. statements made to parole board about a prisoner)
- Statements made to defend one’s own actions, property, or reputation
26
Q
Mitigating Factors
A
Mitigating factors (ex. no malice, retraction, anger of the speaker provoked by P) may be considered by jury on damages issue; they are not defenses to liability.
27
Q
Invasion of Right to Privacy
A
- Right of privacy is a personal right & does not extend to members of a family, does not survive death of P, & is not assignable.
- Right of privacy is not applicable to corps.
- Invasion of P’s interest in privacy must have been proximately caused by D’s conduct.
- P need not plead & prove special damages.
- Emotional distress & mental anguish are sufficient damages.
- This tort includes 4 kinds of wrongs:
(1) Appropriation of P’s picture/name
(2) Intrusion on P’s affairs/seclusion
(3) Publication of facts placing P in a false light
(4) Public disclosure of private facts about P
28
Q
Appropriation of P’s Picture/Name
A
- It is necessary to show unauthorized use of P’s picture/name for D’s commercial advantage.
- Liability is generally limited to ads/promotions of products/services.
- Mere economic benefit to D (not in connection w/ promoting a product/service) by itself is not sufficient.
29
Q
Intrusion on P’s Affairs/Seclusion
A
- This claim forbids such acts as eavesdropping, spying, interception of phone calls/electronic communications, & other similar conduct.
- Act of prying/intruding must be highly offensive to a reasonable person.
- Furthermore, thing into which there is an intrusion must be “private.”
- Photos taken in public places are not actionable.
30
Q
Publications of Facts Placing P in False Light
A
- “False light” exists where one attributes to P views they do not hold/actions they did not take.
- False light must be something highly offensive to a reasonable person under the circumstances.
- For liability to attach, D must circulate statement to public at large.
- Sharing statement w/ only one/few persons will not be sufficient for liability.
a. First Amendment Limitation
If matter is of public interest, actual malice on D’s part must be proved
31
Q
Public Disclosure of Private Facts About P
A
- This wrong involves public disclosure of private info about P (ex. matters of public record are not sufficient).
- Public disclosure must be highly offensive to a reasonable person of ordinary sensibilities.
- Liability may attach even though actual statement is true.
- First Amendment limitations probably apply if matter is of public interest.
32
Q
ROP: Defenses
A
- Some defenses to the right of privacy actions are consent & defamation privilege defenses.
- Truth generally is not a good defense; nor is inadvertence, good faith, or lack of malice.
33
Q
Misrepresentation: Intentional Misrepresentation (Fraud, Deceit)
A
- To establish a prima facie case for intentional misrepresentation requires:
(1) Misrepresentation of a 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 P to act or refrain from acting in reliance upon the misrepresentation
(4) Causation (actual reliance)
(5) Justifiable reliance
(6) Damages (the P must suffer actual pecuniary loss) - There are no defenses to intentional misrepresentation.
34
Q
No General Duty to Disclose
A
- There is no general duty to disclose a material fact, unless D
(1) stands in a fiduciary relationship to the P;
(2) is selling real property and knows P is unaware of, and cannot reasonably discover, material information
about the transaction; or
(3) has spoken and their utterance deceives P. - Physical concealment of a material fact may also constitute a misrepresentation.
35
Q
3RD Party Reliance
A
- If a third party relies on D’s representation, D will be liable if they could reasonably foresee that 3rd party would so rely.
36
Q
Reliance on Opinion
A
- Reliance generally is justifiable only on representations of fact (and P is under no obligation to investigate the fact).
- Reliance on opinion is justifiable only if D offering the opinion has a superior knowledge of the subject matter.
37
Q
Negligent Misrepresentation
A
- A prima facie case for negligent misrepresentation requires:
(1) Misrepresentation by D in a business/professional capacity
(2) BOD toward a particular P
(3) Causation
(4) Justifiable reliance
(5) Damages - Generally, this action is confined to misreps made in a commercial setting, and liability will attach only if reliance by the particular P could be contemplated (ex. for negligent misrep, foreseeability that the statement will be communicated to a third party does not make the D liable to the 3rd party)
38
Q
Interference with Business Relations
A
- To establish a prima facie case for interference with business relations, the following elements must be proved:
(1) Existence of a valid contractual relationship between P and a 3rd party or valid business expectancy of the P
(2)D’s knowledge of the relationship or expectancy
(3) Intentional interference by D inducing a breach/ termination of the relationship or expectancy
(4) Damages
39
Q
IBR: Privileges
A
- D’s conduct may be privileged if it is a proper
attempt to obtain business for itself or protect its interests. - A privilege is more likely to be found if the defendant: (1) interfered only with P’s prospective business rather
than with existing contracts;
(2) used commercially acceptable means of persuasion rather than illegal or threatening tactics;
(3) is a competitor of the plaintiff seeking the same
prospective customers; or
(4) has a financial interest in or responsibility for the 3rd party, or is responding to the 3rd party’s request for business advice.
