Defamation, Invasion of Privacy, & Other Harm to Economic & Dignitary Interests

Question 1

Defamation

Answer 1

• 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

Question 2

Defamatory Statement

Answer 2

• Adversely affects one’s reputation.
• Statement of opinion is actionable only if based on specific facts
• Name-calling is insufficient.

Question 3

DS: Inducement & Innuendo

Answer 3

• If statement is not defamatory on its face, P
  may offer additional facts to show defamatory meaning by “innuendo.”

Question 4

DS: Living Person Requirement

Answer 4

• 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.).

Question 5

Statement Must Specifically Identify P

Answer 5

• P must show that a reasonable reader, listener or viewer would understand that defamatory statement referred to P

Question 6

Colloquium

Answer 6

• If statement does not refer to P on its face, extrinsic evidence may be offered to show statement refers to P
• Pleading “colloquium.”

Question 7

Group Defamation

Answer 7

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!).

Question 8

Publications

Answer 8

• 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.

Question 9

Tip:

Answer 9

• 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.

Question 10

Publication: Whom May be Liable

Answer 10

-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.

Question 11

Damage to P’s Reputation

Answer 11

• 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.

Question 12

Libel

Answer 12

• 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.

Question 13

Slander

Answer 13

• 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

Question 14

Falsity

Answer 14

• 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

Question 15

Tip:

Answer 15

• 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).

Question 16

Fault on D’s Part

Answer 16

• A majority of states require a showing of fault on part of D.
• In addition, there are con limits depending on P’s status.

Question 17

Public Official/Figure Must Prove Actual Malice

Answer 17

• Actual malice must be proved in defamation cases brought by public officials & public figures.

Question 18

What Constitutes a Public Figure

Answer 18

• A person becomes a “public figure” by achieving pervasive fame/notoriety/by voluntarily assuming a central role in a particular public controversy.

Question 19

Definition of Actual Malice

Answer 19

• 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.

Question 20

Private Persons Must Prove Negligence If Matter of Public Concern

Answer 20

• 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).

Question 21

Tip:

Answer 21

• Note that the status of P (public figure/private person) is relevant only for the degree of
  fault required.

Question 22

Defenses to Defamation : Consent

Answer 22

Consent is a complete defense. The rules relating to consent to intentional torts apply here.

Question 23

Defenses to Defamation: Truth

Answer 23

• 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.

Question 24

Defenses to Defamation: Absolute Privilege

Answer 24

• 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

Question 25

Defenses to Defamation: Qualified Privilege

Answer 25

• 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

Question 26

Mitigating Factors

Answer 26

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.

Question 27

Invasion of Right to Privacy

Answer 27

• 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

Question 28

Appropriation of P’s Picture/Name

Answer 28

• 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.

Question 29

Intrusion on P’s Affairs/Seclusion

Answer 29

• 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.

Question 30

Publications of Facts Placing P in False Light

Answer 30

• “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

Question 31

Public Disclosure of Private Facts About P

Answer 31

• 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.

Question 32

ROP: Defenses

Answer 32

• 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.

Question 33

Misrepresentation: Intentional Misrepresentation (Fraud, Deceit)

Answer 33

• 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.

Question 34

No General Duty to Disclose

Answer 34

• 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.

Question 35

3RD Party Reliance

Answer 35

• If a third party relies on D’s representation, D will be liable if they could reasonably foresee that 3rd party would so rely.

Question 36

Reliance on Opinion

Answer 36

• 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.

Question 37

Negligent Misrepresentation

Answer 37

• 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)

Question 38

Interference with Business Relations

Answer 38

• 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

Question 39

IBR: Privileges

Answer 39

• 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.